Herbert v. Platinum Capital Partners, Inc.

Herbert v Platinum Capital Partners, Inc. (2014 NY Slip Op 07596)

Herbert v Platinum Capital Partners, Inc.

2014 NY Slip Op 07596

Decided on November 6, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 6, 2014
Sweeny, J.P., Andrias, Saxe, Richter, Feinman, JJ.

650229/12 —-13429 13428 13427 13426 13425

[*1] Mark Herbert, et al., Plaintiffs,

v

Platinum Capital Partners, Inc., Defendant-Appellant, Tarter Krinsky & Drogin LLP, Defendant. Law Office of Michael C. Rakower, P.C., Nonparty Respondent.

Tarter Krinsky & Drogin LLP, New York (Christopher Tumulty of counsel), for appellant.

Rakower Lupkin PLLC, New York (Michael C. Rakower of counsel), for respondent.

Judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered March 17, 2014, awarding the total sum of $59,718.55 in favor of nonparty Law Office of Michael C. Rakower, P.C. (Rakower Law) against defendant Platinum Capital Partners, Inc., and bringing up for review an order of the same court and Justice, entered August 7, 2013, an amended order of the same court and Justice, entered September 20, 2013, and an amended order of the same court and Justice, entered November 8, 2013, all of which referred the calculation of attorneys' fees to a special referee, an order of the same court and Justice, entered October 28, 2013, which denied Platinum's motion to renew and reargue, and an order of the same court and Justice, entered March 11, 2014, which directed entry of judgment in favor of Rakower Law, unanimously affirmed, without costs. Appeals from the aforementioned orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court properly directed Platinum to pay attorneys' fees to plaintiffs' counsel Rakower Law under the terms of the operative agreement mandating the payment of fees to the prevailing party. Given that the agreement provided that the prevailing party in "any dispute" shall be entitled to an award, the outcome of a separate action between the parties is irrelevant. Furthermore, Rakower Law has an enforceable charging lien against the award of attorneys' fees [*2](see Judiciary Law § 475; Rosen v Rosen , 97 AD2d 837 [2d Dept 1983]. There is no basis for a grant of attorneys' fees and expenses in connection with this appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 6, 2014

CLERK