England & England v. Carter

*644In the instant case, the appellant represented Marilyn Kenny, a plaintiff in a matrimonial action. In the underlying matrimonial action, the parties entered into a stipulation that Marilyn Kenny’s husband John Kenny was to receive the sum of approximately $64,000 upon the sale of the marital residence. Upon the closing of title to the marital residence on September 19, 1988, James W. Carter, the attorney for John Kenny, placed his client’s share of the proceeds in escrow.

Thereafter, by order dated January 18, 1989, the appellant was awarded $36,736.75 in counsel fees and disbursements, for services rendered to Marilyn Kenny, its client in the matrimonial action. That order directed John Kenny to pay the counsel fee award directly to the appellant, and a judgment in the appellant’s favor and against John Kenny was entered April 18, 1989.

The appellant brought the instant proceeding pursuant to CPLR 5225 (b) against James W. Carter on or about February 14, 1989. However, on or about February 5, 1989, Mr. Carter had properly distributed the funds held in escrow. Therefore, at the time the instant proceeding was commenced Mr. Carter was no longer in possession of those funds. Consequently, the instant proceeding was properly dismissed.

We have examined the appellant’s remaining contentions and find them to be without merit. Mangano, P. J., Kunzeman, Fiber and Balletta, JJ., concur.