TRAFELET v. Buchanan Ingersoll & Rooney P.C., Nonparty-Appellant. (2023)

Order, Supreme Court, New York County (Joseph P. Burke, Special Referee), entered on or about February 6, 2023, which, to the extent appealed from as limited by the briefs, denied nonparty Buchanan Ingersoll & Rooney P.C.’s (BIR) request for an order enforcing its charging lien against certain funds held in escrow by plaintiff's counsel, unanimously reversed, on the law, without costs, and the request granted.

Although the order for review is not appealable as of right because it did not decide a motion on notice (see CPLR 5701[a][2]), we exercise our discretion in the interest of judicial economy, deem BIR's notice of appeal to be a motion for leave to appeal, and grant that motion (see CPLR 5701[c];  Serradilla v. Lords Corp., 12 A.D.3d 279, 280, 785 N.Y.S.2d 433 [1st Dept. 2004]).

BIR is entitled to enforce its charging lien, the existence of which has been recognized by the court (Matter of Trafelet v. Cipolla & Co., LLC, 190 A.D.3d 573, 141 N.Y.S.3d 11 [1st Dept. 2021]), and the amount of which was set by stipulation against certain funds held in escrow by plaintiff's counsel, while maintaining its counterclaim in plaintiff's legal malpractice action (see Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 218–219, 651 N.Y.S.2d 525 [1st Dept. 1997];  Anonymous v. Anonymous, 258 A.D.2d 279, 280, 685 N.Y.S.2d 67 [1st Dept. 1999]).