Opinion
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
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, 952 N.Y.S.2d 3 [1st Dept. 2012]; see also Weg & Myers v. Banesto Banking Corp., 175 A.D.2d 65, 66, 572 N.Y.S.2d 321 [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, 952 N.Y.S.2d 3).