WALLACH v. UNGER STUTMAN LLP (2008)

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

Gale Ann WALLACH, Plaintiff-Appellant, v. UNGER & STUTMAN, LLP, et al., Defendants-Respondents.

Decided: February 28, 2008

LIPPMAN, P.J., FRIEDMAN, WILLIAMS, ACOSTA, JJ.

Schwartz & Ponterio, PLLC, New York (Matthew F. Schwartz of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Robert J. Pariser of counsel), for respondents.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered December 12, 2006, which, in an action for legal malpractice, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

The action is barred by the unappealed order that recognized defendants' charging lien in the underlying action in which defendants were discharged by plaintiff (Smira v. Roper, Barandes & Fertel, 302 A.D.2d 305, 754 N.Y.S.2d 872 [2003]; Molinaro v. Bedke, 281 A.D.2d 242, 721 N.Y.S.2d 534 [2001] ). This result is not affected by the parties' stipulation in which defendants agreed not to pursue the charging lien until after the disposition of the instant action. Since the charging lien had already been imposed, the stipulation merely deferred the proceeding for fixing the amount of defendants' fee.

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