REBMANN v. Fidelity & Deposit Company of Maryland, Appellant. (1999)

Plaintiff commenced an action against defendant, John R. Wicks, Jr., alleging a violation of Labor Law § 240(1).   The action was settled.   Defendant refused to comply with the terms of the settlement agreement, and plaintiff obtained a judgment against defendant in the sum of $10,000.   Defendant appealed from that judgment and filed an appeal bond issued by Fidelity & Deposit Company of Maryland (F & D) to stay execution of the judgment.   We affirmed the judgment (Rebmann v. Wicks, 227 A.D.2d 1009, 643 N.Y.S.2d 299).   In a separate action, defendant sued plaintiff for damages for breach of contract and obtained a judgment in the sum of $12,443.97.   Plaintiff's attorney thereafter moved pursuant to Judiciary Law § 475 for an order fixing the amount of his attorney's charging lien and enforcing that lien, and defendant cross-moved for an order of setoff pursuant to Debtor and Creditor Law § 151.

 Supreme Court properly determined that the attorney's charging lien is superior to defendant's right of setoff pursuant to the judgment obtained by defendant in a subsequent action (see, Beecher v. Vogt Mfg. Co., 227 N.Y. 468, 473-474, 125 N.E. 831;  Matter of Weiser v. City of New York, 16 A.D.2d 666, 667, 226 N.Y.S.2d 929;  Smith v. Cayuga Lake Cement Co., 107 App.Div. 524, 95 N.Y.S. 236).   The court erred, however, in directing F & D to satisfy the amount of that lien.   Although an attorney may summarily enforce a charging lien against his or her client (see, Matter of Curran, 154 N.Y.S.2d 80;  Shaw v. Shaw, 66 N.Y.S.2d 437), an attorney must commence a separate action to enforce the lien against third parties who are not his or her clients (see, Matter of Salant, 158 App.Div. 697, 699-700, 143 N.Y.S. 870, affd. 210 N.Y. 622, 104 N.E. 1140;  Rochfort v. Metropolitan St. Ry. Co., 50 App.Div. 261, 63 N.Y.S. 1036).   In addition, because no action has been commenced by plaintiff against F & D to enforce the terms of the appeal bond, the court lacked jurisdiction to direct F & D to satisfy the lien of plaintiff's attorney (see, Anderson v. United States Fid. & Guar. Co., 238 App.Div. 48, 49, 263 N.Y.S. 338).

 The court also erred in directing sua sponte that the lien of defendant's attorney be satisfied from the appeal bond.  “A court may grant undemanded relief only if there is no substantial prejudice to the adverse party” (Ressis v. Mactye, 98 A.D.2d 836, 837, 470 N.Y.S.2d 502).   Thus, we modify the order and judgment by vacating the third, fourth and fifth ordering and decretal paragraphs.

Order and judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: