Rebmann v. Wicks

Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced an action against defendant, John R. Wicks, Jr., alleging a violation of Labor Law § 240 (1). The action was settled. Defendant refused to comply with the terms of the settlement agreement, and plaintiff obtained a judgment against defendant in the sum of $10,000. Defendant appealed from that judgment

Supreme Court properly determined that the attorney’s charging lien is superior to defendant s right of setoff pursuant to the judgment obtained by defendant in a subsequent action (see, Beecher v Vogt Mfg. Co., 227 NY 468 , 473-474; Matter of Weiser v City of New York, 16 AD2d 666 , 667; Smith v Cayuga Lake Cement Co., 107 App Div 524 ). The court erred, however, in directing F & D to satisfy the amount of that lien. Although an attorney may summarily enforce a charging lien against his or her client (see, Matter of Curran, 154 NYS2d 80 ; Shaw v Shaw, 66 NYS2d 437 ), an attorney must commence a separate action to enforce the lien against third parties who are not his or her clients (see, Matter of Salant, 158 App Div 697 , 699-700, affd 210 NY 622 ; Rochfort v Metropolitan St. Ry. Co., 50 App Div 261 ). In addition, because no action has been commenced by plaintiff against F & D to enforce the terms of the appeal bond, the court lacked jurisdiction to direct F & D to satisfy the lien of plaintiff s attorney (see, Anderson v United States Fid. & Guar. Co., 238 App Div 48 , 49).

The court also erred in directing sua sponte that the lien of defendant s attorney be satisfied from the appeal bond. “A court may grant undemanded relief only if there is no substantial prejudice to the adverse party” (Ressis v Mactye, 98 AD2d 836 , 837). Thus, we modify the order and judgment by vacating the third, fourth and fifth ordering and decretal paragraphs. (Appeal from Order and Judgment of Supreme Court, Erie County, Whelan, J. — Lien.) Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.