Wallach v Unger & Stutman, LLP

2008 NY Slip Op 01799 [48 AD3d 360]

February 28, 2008

Appellate Division, First Department

As corrected through Wednesday, April 16, 2008

Gale Ann Wallach, Appellant, v Unger & Stutman, LLP, etal., Respondents.

—[*1]Schwartz & Ponterio, PLLC, New York City (Matthew F. Schwartz of counsel), forappellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York City (Robert J. Pariser ofcounsel), for respondents.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered December 12, 2006,which, in an action for legal malpractice, granted defendants' motion to dismiss the complaint,unanimously affirmed, without costs.

The action is barred by the unappealed order that recognized defendants' charging lien in theunderlying action in which defendants were discharged by plaintiff (Smira v Roper, Barandes& Fertel, 302 AD2d 305 [2003]; Molinaro v Bedke, 281 AD2d 242 [2001]). Thisresult is not affected by the parties' stipulation in which defendants agreed not to pursue thecharging lien until after the disposition of the instant action. Since the charging lien had alreadybeen imposed, the stipulation merely deferred the proceeding for fixing the amount of defendants'fee. Concur—Lippman, P.J., Friedman, Williams and Acosta, JJ.