1273 Service Corp. v. National Security Fire & Casualty Co. , 400 N.Y.S.2d 166 ( 1977 )

In an action on a fire insurance policy, plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated April 28, 1977, which denied, with leave to renew, the motion of its attorneys to impose a charging lien upon the proceeds of the insurance policy which had been paid into court pursuant to an order dated March 29, 1977, and (2) as limited by its brief, from so much of a further order of the same court, dated July 6, 1977, as, upon reargument, adhered to the original determination. Appeal from the order dated April 28, 1977, dismissed as academic, without costs or disbursements. That order was superseded by the order granting reargument. Order dated July 6, 1977 affirmed insofar as appealed from, without costs or disbursements. By order dated March 29, 1977, the Trial Term granted defendant’s cross motion pursuant to CPLR 1006 (subd [b]) ("Defensive interpleader”) and ordered defendant discharged from liability upon payment of $13,500 to the clerk of the court. No appeal was taken from that order. The motion for defensive interpleader was granted notwithstanding the fact that defendant failed to serve Republic Elevator Co. with a summons and interpleader complaint as required by CPLR 1006 (subd [b]). Under the circumstances, the court properly denied the motion for the imposition of an attorney’s charging lien upon the insurance proceeds. There is a party in interest, Republic Elevator Co., which is not currently before the court and which cannot effectively assert its right to the fund on this motion. Shapiro, J. P., Hawkins, Suozzi and Mollen, JJ., concur.