Camacho v G&R Garage, 2024 NY Slip Op 00931 [224 AD3d 569]

February 22, 2024

Appellate Division, First Department

[*1]

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 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 AD3d 405 , 406-407 [1st Dept 2012]; see also Weg & Myers v Banesto Banking Corp. , 175 AD2d 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 AD3d at 407). Concur—Oing, J.P., Kapnick, Kennedy, Mendez, Higgitt, JJ..