Molinaro v. Bedke

• Decision Date: 15 March 2001
• Citation: 281 A.D.2d 242,721 N.Y.S.2d 534
• Parties: (A.D. 1 Dept. 2001) James Molinaro, et al., Plaintiffs-Appellants, V. Kathryn L. Bedke, et al., Defendants-Respondents. 3529
• Court: New York Supreme Court — Appellate Division

Page 534

721 N.Y.S.2d 534 (A.D. 1 Dept. 2001)

James Molinaro, et al., Plaintiffs-Appellants,

V.

Kathryn L. Bedke, et al., Defendants-Respondents.

3529

SUPREME COURT, APPELLATE DIVISION, FIRST JUDICIAL DEPARTMENT

March 15, 2001

Glenn Greenwald, for plaintiffs-appellants,

Thomas W. Hyland, for defendants-respondents.

Appeal from order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 14, 2000, which granted defendants' motion to dismiss the complaint as barred by res judicata, and denied plaintiffs' motion to serve an amended complaint, deemed an appeal from the judgment, same court and Justice, entered May 15, 2000, dismissing the complaint, and so considered, the judgment is unanimously affirmed, without costs.

The appeal should be considered on the merits even though plaintiffs have not appealed the judgment that ministerially implemented the order they did appeal (CPLR 5501[c]; see, Morris & Partners, 234 A.D.2d 56, Neuman v Otto, 114 A.D.2d 791). The action was properly dismissed on the ground that plaintiffs' claim of legal malpractice is barred by the order rendered in the underlying action permitting defendants to withdraw and recognizing their claim to a charging lien on account of their services in that action (see, Chisholm-Ryder Co. v Sommer & Sommer, 78 A.D.2d 143). The record clearly shows that it was a charging lien that defendants sought, and not, as plaintiffs claim, a retaining lien, and it would not necessarily avail plaintiffs even if it were a retaining lien that had been recognized in the underlying action (cf., Summit Solomon & Feldesman v Matalon, 216 A.D.2d 91, 92, lv denied 86 N.Y.2d 711; Sage Realty v Corp. v Proskauer Rose, 251 A.D.2d 35, 39). Nor does it avail plaintiffs for purposes of their malpractice claim that the order recognizing defendants' charging lien did not fix the amount thereof, a task that could properly be deferred pending resolution of the underlying action (see, Klein v Eubank, 87 N.Y.2d 459; cf., Butler, Fitzgerald & Potter v Gelmin, 235 A.D.2d 218, 219). Of course, plaintiffs can challenge the reasonableness of defendants' claimed fee in defense of defendants' counterclaims. The motion court properly denied plaintiffs leave to serve an amended complaint raising only the barred malpractice claims.

Sullivan, P.J., Rosenberger, Williams, Mazzarelli, Friedman, JJ., concur.