Opinion
2013-04-16
Nata BOB, Plaintiff–Respondent, v. Steve COHEN, et al., Defendants–Appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for appellants. Nata Bob, respondent pro se.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for appellants. Nata Bob, respondent pro se.
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Joan M. Kenney, J.), entered May 11, 2011, which denied defendants' motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion granted. Appeal from order, same court and Justice, entered July 14, 2011, which denied defendants' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable paper. The Clerk is directed to enter judgment dismissing the complaint against defendants.
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 had served and filed their motion to dismiss by that 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] ). On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff ( seeWorkers' Compensation Law § 24), precludes plaintiff's present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application ( see e.g. Lusk v. Weinstein, 85 A.D.3d 445, 924 N.Y.S.2d 91 [1st Dept. 2011], lv. denied17 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] ).
In view of the foregoing, we need not consider defendants' remaining argument.
The Decision and Order of this Court entered herein on October 2, 2012 is hereby recalled and vacated ( seeM–5183, 2013 WL 1597733 decided simultaneously herewith).