WESTFALL v. Miserendino, Celniker, Seegert & Estoff, P.C., Respondent.

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

Sara Lynn WESTFALL and Tammy Lee Westfall, as Co-Administrators of the Estate of Sara Faye Westfall, a/k/a Sara Faye Hooper, Deceased, Plaintiffs-Appellants, v. COUNTY OF ERIE, et al., Defendants. Miserendino, Celniker, Seegert & Estoff, P.C., Respondent.

Decided: March 21, 2001

PRESENT:  GREEN, J.P., WISNER, HURLBUTT and BURNS, JJ. Timothy J. Toohey, Lewiston, for plaintiffs-appellants. Michael R. Drumm, Buffalo, for respondent.

 A judgment was entered subsequent to the entry of the order from which this appeal was taken.   Although the order is subsumed within the judgment and the appeal is properly from the judgment, not the order (see, Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988, 529 N.Y.S.2d 658), we exercise our discretionary power to treat the appeal as one taken from the judgment (see, CPLR 5520[c];  Scorsone v. Lampell, 237 A.D.2d 992, 656 N.Y.S.2d 1025).

 Supreme Court properly granted the petition of Miserendino, Celniker, Seegert & Estoff, P.C. (Miserendino, Celniker firm) for an order enforcing a stipulation allocating plaintiffs' attorneys' fees between the Miserendino, Celniker firm and Timothy J. Toohey, P.C. (Toohey).  Contrary to plaintiffs' contention, the Miserendino, Celniker firm was not required to commence a separate action to enforce its charging lien (cf., Rebmann v. Wicks, 259 A.D.2d 972, 973, 688 N.Y.S.2d 293).   Rather, as plaintiffs' former attorney of record, the Miserendino, Celniker firm was entitled to initiate a proceeding to determine and enforce its charging lien pursuant to Judiciary Law § 475 (see generally, Klein v. Eubank, 87 N.Y.2d 459, 461-462, 640 N.Y.S.2d 443, 663 N.E.2d 599, rearg. denied 87 N.Y.2d 1056, 644 N.Y.S.2d 149, 666 N.E.2d 1063;  Matter of Benjamin v. Material Damage Adj. Corp., 275 A.D.2d 527, 528, 711 N.Y.S.2d 641).   The court properly enforced the stipulation and awarded the Miserendino, Celniker firm 40% of the contingent fee attributable to the settlement of the action against both defendants (see, Matter of Benjamin v. Material Damage Adj. Corp., supra, at 528, 711 N.Y.S.2d 641).

Judgment unanimously affirmed with costs.