Opinion
No. 1732 Index No. 20634/14 Case No. 2023-04394
02-22-2024
Kisha Camacho, Plaintiff, v. G&R Garage et al., Defendants. Napoli Shkolnik, PLLC, Nonparty Appellant. Hausman & Pendzick, Nonparty-Respondent.
Napoli Shkolnik, PLLC, New York (Nestor D. Galarza of counsel), for appellant. Hausman & Pendzick, Pound Ridge (Elizabeth M. Pendzick of counsel), for respondent.
Napoli Shkolnik, PLLC, New York (Nestor D. Galarza of counsel), for appellant.
Hausman & Pendzick, Pound Ridge (Elizabeth M. Pendzick of counsel), for respondent.
Before: Oing, J.P., Kapnick, Kennedy, Mendez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Marissa Soto, J.), entered February 3, 2023, which denied nonparty appellant Napoli Shkolnik, PLLC's motion for legal fees, unanimously affirmed, with costs.
Napoli Shkolnik failed to establish that it was entitled to a charging lien upon the settlement proceeds in the underlying personal injury action, as it neither commenced the action nor appeared on plaintiff's behalf during any part of the legal proceeding (see Judiciary Law § 475 ; Cabukyuksel v Ascot Props., LLC, 99 A.D.3d 405, 406-407 [1st Dept 2012]; see also Weg & Myers v Banesto Banking Corp., 175 A.D.2d 65, 66 [1st Dept 1991]). Napoli Shkolnik also failed to submit a retainer agreement showing that plaintiff retained the firm to pursue her claims. Accordingly, Napoli Shkolnik's remedy is a plenary action, where it can obtain the discovery it seeks here (see Cabukyuksel, 99 A.D.3d at 407).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.