BOB v. COHEN (2012)

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered May 11, 2011, which denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 14, 2011, denying defendants' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper.

Defendants' motion to dismiss was not untimely, as found by the motion court, since the parties had stipulated, both orally and in writing, to extend defendants' time to “respond” to the complaint to January 31, 2011 and defendants served and filed their motion to dismiss by said date (see DiIorio v. Antonelli, 240 A.D.2d 537, 658 N.Y.S.2d 453 [2d Dept.1997]; Del Valle v. Office of Dist. Attorney of Bronx County, 215 A.D.2d 258, 626 N.Y.S.2d 199 [1st Dept.1995]; CPLR 320[a], 3211[e]; compare McGee v. Dunn, 75 A.D.3d 624, 625, 906 N.Y.S.2d 74 [2d Dept.2010] ). Nevertheless, defendants were not entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The award of legal fees by the workers' compensation board to defendants was not made against plaintiff, but rather was to be paid by the employer's insurance carrier (cf. Breslin Realty Dev. Corp. v. Shaw, 72 A.D.3d 258, 263–265, 893 N.Y.S.2d 95 [2d Dept.2010] ). Moreover, no showing has been made that a charging lien or a retaining lien was asserted against proceeds awarded to plaintiff in the underlying administrative proceeding (see e.g. Lusk v. Weinstein, 85 A.D.3d 445, 924 N.Y.S.2d 91 [1st Dept.2011], lv. denied 17 N.Y.3d 709, 2011 WL 4089837 [2011]; Zito v. Fischbein Badillo Wagner Harding, 80 A.D.3d 520, 915 N.Y.S.2d 260 [1st Dept.2011] ).

We have considered defendants' remaining arguments and find them unavailing, on this meager record.