Ader v. Purcell

Pecora, J.

A hybrid proceeding has been attempted here. A summons together with a petition seeking relief pursuant to section 475 of the Judiciary Law has been served in which petitioners are designated as plaintiffs and respondents as defendants. Since there is no action, the summons must be dismissed.. Nor is it a special proceeding, which is commenced by the service of a notice of motion or order to show cause and a petition. The summons cannot take the place of a notice of motion. Furthermore the petition clearly shows that section 475 of the Judiciary Law is inapplicable, since the petitioners never commenced an action, special or other proceeding in any court wherein they appeared as attorneys for any of the respondents. There is no charging lien. If anything, petitioners only have a retaining lien. Their remedy lies in an action at law to recover the value of services rendered. Finally the filing of a notice of pendency of action was wholly unwarranted. The petition clearly demonstrates that no action has been brought which falls within the categories enumerated in section 120 of the Civil Practice Act. The motion to vacate the service of the summons, to dismiss the petition and to cancel the lis pendens is in all respects granted. The cross motion for an inquest to determine the alleged attorneys ’ lien is denied. Settle order.