General
Herald Square Foot Care Associates, Inc., et al., Plaintiffs, v. Indemnity Insurance Company of North America, Defendant. Matarazzo Blumberg & Associates, P. C., Nonparty Appellant; Herald Center Department Stores, L.P., Nonparty Respondent
258 A.D.2d 551682 N.Y.S.2d 592·New York Supreme Court, Appellate Division·1999·NY
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Opinion
Herald Square Foot Care Associates, Inc., et al., Plaintiffs, v Indemnity Insurance Company of North America, Defendant. Matarazzo Blumberg & Associates, P. C., Nonparty Appellant; Herald Center Department Stores, L.P., Nonparty Respondent.
[682 NYS2d 592]
[MAJORITY]
—Appeal from order, Supreme Court, New York County (Richard Lowe, III, J.), entered October 20, 1997, which denied the motion of nonparty appellant Matarazzo Blumberg & Associates, P. C., to enforce its charging lien and the liens of two insurance adjusters, unanimously dismissed, without costs.
The underlying action having been discontinued with prejudice on November 21, 1997, after entry of the order appealed from, “no action presently exists to ground the motion made by the nonparty [appellant]” (D’Amico v Nuzzo, 194 AD2d 761), and the appeal from the motion’s denial must accordingly be dismissed. The relief nonparty appellant seeks cannot now be obtained except within the context of a newly commenced separate plenary action (see, Hotel Prince George Affiliates v Grimbilas, 241 AD2d 302, lv dismissed 91 NY2d 887; Matter of Creamer, 37 AD2d 33, 35; Urso v Panish, 94 AD2d 701). Concur — Ellerin, J. P., Wallach, Tom and Andrias, JJ.