Frank David Seinfeld v James D. Robinson

Seinfeld v Robinson 2004 NY Slip Op 08145 [12 AD3d 218] November 16, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Frank David Seinfeld et al., Respondents,
v
James D. Robinson, III, et al., Defendants, et al., Nominal Defendant. William C. Rand, Appellant.

—[*1]

Appeal from order, Supreme Court, New York County (Louis B. York, J.), entered October 22, 2003, which, in a shareholder derivative action, denied appellant objector's motion for an award of attorneys' fees upon his failure to appear in court on the return date of the motion, unanimously dismissed, without costs, as taken from a nonappealable order.

No appeal lies from an order, such as this, entered on default of the aggrieved party (CPLR 5511; Gale v Liffey Van Lines, 269 AD2d 195 [2000], lv dismissed 94 NY2d 941 [2000]). In any event, the motion for attorneys' fees was deniable on the merits. This was a situation in which "a pro se [objector] who [was] also an attorney should not [have been] awarded attorney's fees" (In re Texaco Inc. Shareholder Derivative Litig., 123 F Supp 2d 169, 172 [SD NY 2000], affd 28 Fed Appx 83 [2002]; see also Zucker v Westinghouse Elec., 374 F3d 221 [3d Cir 2004]). Concur—Mazzarelli, J.P., Ellerin, Lerner, Friedman and Sweeny, JJ.