Schelter v. Schelter

• Decision Date: 15 July 1994
• Citation: 614 N.Y.S.2d 853,206 A.D.2d 865
• Parties: Sally SCHELTER, Plaintiff, v. Bruce H. SCHELTER, Respondent-Appellant. Cyrus Kloner, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 853

614 N.Y.S.2d 853

206 A.D.2d 865

Sally SCHELTER, Plaintiff, v. Bruce H. SCHELTER, Respondent-Appellant.

Cyrus Kloner, Appellant-Respondent.

Supreme Court, Appellate Division,

Fourth Department.

July 15, 1994.

Cyrus Kloner, Rochester, for appellant-respondent.

Elliott, Stern, Calabrese & Higgins (Richard J. Elliott, of counsel), Rochester, for respondent-appellant.

Before GREEN, J.P., and BALIO, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Funds held in escrow or in a custodial capacity are not subject to an attorney's retaining lien (see, Marsano v. State Bank of Albany, 27 A.D.2d 411, 279 N.Y.S.2d 817, appeal dismissed 23 N.Y.2d 1018, 299 N.Y.S.2d 458, 247 N.E.2d 286; Entertainment & Amusements of Ohio v. Barnes, 49 Misc.2d 316, 267 N.Y.S.2d 359). Thus, the sum of $8,000, held by defendant's former attorney subject to further direction by the court as part of an undertaking pending the appeal of a judgment for arrears in child support, was not subject to the former attorney's retaining lien, and Supreme Court properly directed that the attorney transfer those funds to defendant's current attorneys. We note that, even if the funds were treated as payments for child support, we would conclude that such payments are not subject to an attorney's retaining lien (cf., Levine v. Levine, 206 Misc. 884, 135 N.Y.S.2d 304; see also, Law Office of Tony Center v. Banker, 185 Ga.App. 809, 366 S.E.2d 167).

The court properly denied defendant's motion for counsel fees. Domestic Relations Law § 237(c) does not apply to a motion for an order compelling an attorney to transfer funds held in escrow, regardless of the fact that the funds constitute part of an undertaking pertaining to a judgment for child support arrears.

Order unanimously affirmed with costs to defendant.