CAMACHO v. Hausman & Pendzick, Nonparty-Respondent. (2024)

Supreme Court, Appellate Division, First Department, New York.

Kisha CAMACHO, Plaintiff, v. G&R GARAGE et al., Defendants. Napoli Shkolnik, PLLC, Nonparty Appellant. Hausman & Pendzick, Nonparty-Respondent.

1732

Decided: February 22, 2024

Oing, J.P., Kapnick, Kennedy, Mendez, Higgitt, JJ.

Napoli Shkolnik, PLLC, New York (Nestor D. Galarza of counsel), for appellant. Hausman & Pendzick, Pound Ridge (Elizabeth M. Pendzick of counsel), for respondent

Order, Supreme Court, Bronx County (Marissa Soto, J.), entered February 3, 2023, which denied nonparty appellant Napoli Shkolnik, PLLC's motion for legal fees, unanimously affirmed, with costs.

Napoli Shkolnik failed to establish that it was entitled to a charging lien upon the settlement proceeds in the underlying personal injury action, as it neither commenced the action nor appeared on plaintiff's behalf during any part of the legal proceeding (see Judiciary Law § 475; Cabukyuksel v. Ascot Props., LLC, 99 A.D.3d 405, 406–407, 952 N.Y.S.2d 3 [1st Dept. 2012]; see also Weg & Myers v. Banesto Banking Corp., 175 A.D.2d 65, 66, 572 N.Y.S.2d 321 [1st Dept. 1991]). Napoli Shkolnik also failed to submit a retainer agreement showing that plaintiff retained the firm to pursue her claims. Accordingly, Napoli Shkolnik's remedy is a plenary action, where it can obtain the discovery it seeks here (see Cabukyuksel, 99 A.D.3d at 407, 952 N.Y.S.2d 3).

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