Matter of New York Diet Drug Litigation v. Wyeth-Ayerst Laboratories
Decision Date | 31 January 2008 |
Docket Number | No. 115937/99,No. 700000/98.,No. 2184N.,2184N.,700000/98.,115937/99 |
Citation | 850 N.Y.S.2d 408,2008 NY Slip Op 612,47 A.D.3d 586 |
Parties | In the Matter of NEW YORK DIET DRUG LITIGATION. CLARA APPEL-HOLE et al., Plaintiffs, v. WYETH-AYERST LABORATORIES et al., Defendants. PARKER & WAICHMAN LLP et al., Intervenor Respondents; NAPOLI, KAISER & BERN, LLP, et al., Intervenor Appellants. |
Court | New York Supreme Court — Appellate Division |
P & W, the referring attorneys, claim that in a mass settlement of litigation arising from the use of Fen-Phen, settling attorneys Napoli, Kaiser & Bern (NKB) misallocated settlement awards and costs to the referred clients. The court properly allowed P & W, as well as a group of its clients, to intervene and seek disclosure of certain documents in support of a settlement order dated November 7, 2001. "The remedy for fraud allegedly committed during the course of a legal proceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR 5015 [a] [3]), and not by another plenary action collaterally attacking that judgment" (St. Clement v Londa, 8 AD3d 89, 90 [2004]). P & W and its clients properly so moved. Furthermore, P & W's action in moving to intervene was not untimely. To the contrary, any delay in P & W's motion was due largely to NKB's own action in moving ex parte for the settlement order despite its own awareness that P & W disputed the settlement allocations.
We have considered NKB's other contentions and find them unavailing.
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