In re the Dissolution of Peerless Sales Corp. , 418 N.Y.S.2d 96 ( 1979 )

Hopkins, J. P. (dissenting).

I vote to reverse the order and to grant the petition to enforce an attorney’s lien.

The essence of the question before us is whether the stipulation entered into subsequent to the judgment in the action for the dissolution of the corporations ended the jurisdiction of the court in the action. The judgment granted the dissolution of the corporations and appointed a receiver. The judgment was subject to the continuing jurisdiction of the court (see Matter of Gordon & Weiss, 32 AD2d 279; Matter of Smith [Guibor], 47 AD2d 875).

By the stipulation, the parties submitted the determination of their interests to arbitration. The stipulation provided that "all proceedings in the above-mentioned dissolution proceeding shall be stayed pending the final determination of arbitration”. It further provided that the arbitrator’s determination "may be reduced to judgment and entered in the Supreme Court of Nassau County”. Moreover, it provided that the determination was final and subject to no appeal, "except on the ground of fraud or patent error.”

By its terms the stipulation did not end the jurisdiction of the court in the action. Though it prescribed the method of determining the interests of the parties, clearly the determination of the arbitrator would have to be effectuated by the court through the enforcement of the judgment to be entered, in the event that the determination was balked by one or more of the parties. Hence, the stipulation contemplated the continuation of the jurisdiction of the court in the pending action. It is noteworthy that the stipulation did not discontinue the action, but recognized that it continued, as the stipulation provided that further proceedings in the action were stayed pending the determination of the arbitrator.

As the action remained in existence, the attorney’s lien under the statute remained in existence. (See Judiciary Law, § 475.)

Shapiro and Martuscello, JJ., concur with Mangano, J.; Hopkins, J. P., dissents and votes to reverse the order and grant the petition, with an opinion, in which Gulotta, J., concurs.

Order of the Supreme Court, Nassau County, dated December 17, 1978, affirmed, with $50 costs and disbursements.