CATANIA MAHON RIDER PLLC v. NEEMAN (2024)

DECISION & ORDER

In an action for a money judgment in the sum of $175,000 for failing to comply with a judgment in favor of the plaintiff and against the defendants awarding reasonable attorneys' fees and imposing charging and retaining liens, commenced by motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the defendants appeal from (1) an order of the Supreme Court, Orange County (Robert A. Onofry, J.), dated December 19, 2022, and (2) a judgment of the same court dated January 3, 2023.  The order granted the plaintiff's motion for summary judgment in lieu of complaint.  The judgment, upon the order, is in favor of the plaintiff and against the defendants in the principal sum of $175,000.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is reversed, on the law, the plaintiff's motion for summary judgment in lieu of complaint is denied without prejudice to renewal in accordance herewith, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see 5501[a][1]).

The plaintiff, former counsel to the defendants, commenced this action by motion for summary judgment in lieu of complaint pursuant to CPLR 3213 for a money judgment in the sum of $175,000, alleging that the defendants failed to comply with a judgment in favor of the plaintiff and against the defendants, entered in a related action, awarding the plaintiff reasonable attorneys' fees and imposing charging and retaining liens against the defendants (see Neeman v. Smith, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 2035513 [Appellate Division Docket No. 2022–05668;  decided herewith] [hereinafter the related appeal]).  In an order dated December 19, 2022, the Supreme Court granted the plaintiff's motion and, in a judgment dated January 3, 2023, awarded the plaintiff the principal sum of $175,000.  The defendants appeal.

In light of our determination on the related appeal, the plaintiff's motion for summary judgment in lieu of complaint must be denied without prejudice to renewal upon the completion, in the related action, of a hearing and new determination of the amount of reasonable attorneys' fees to be awarded to the plaintiff and the amount in which the charging lien should be fixed (see Neeman v. Smith, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 2035513 [Appellate Division Docket No. 2022–05668]).

DUFFY, J.P., WOOTEN, GENOVESI and VOUTSINAS, JJ., concur.