Icahn v. Icahn

—In a matrimonial action, Dominic A. Barbara, former attorney for the defendant, appeals from an order of the Supreme Court, Westchester County (Scancarelli, J.), dated October 13, 2000, which denied that branch of his motion which was for prejudgment interest on an award of an attorney’s fee, granted by judgment of the same court (Shapiro, J.), entered March 9, 2000, and which purportedly denied that branch of his motion which was for an additional attorney’s fee for services rendered in obtaining the award of an attorney’s fee. Ordered that the appeal from the order is dismissed, without costs or disbursements, and the order is vacated. The appeal from so much of the order as denied that branch of the motion of Dominic A. Barbara, former attorney for the defendant, which was for prejudgment interest on an award of an attorney’s fee must be dismissed, as academic, and the order vacated. The judgment entered March 9, 2000, upon which the order was based, has been vacated (see Icahn v Icahn, 295 AD2d 566 [decided herewith]). Further, the Supreme Court did not address that branch of the appellant’s motion which was for an additional attorney’s fee. Consequently, the appeal from so much of the order as failed to determine that branch of the motion must be dismissed as that branch of the motion remains pending and undecided (see Mahoney v Mahoney, 272 AD2d 303). The issue of the appellant’s entitlement to prejudgment interest will arise again because, although the amount of the attorney’s fee sought by the appellant is disputed by the defendant, she clearly owes the appellant a fee. Consequently, we note that the appellant waived his claim for prejudgment interest (see Matter of Gary E. Rosenberg, P.C. v McCormack, 266 AD2d 396). Ritter, J.P., Altman, Adams and Crane, JJ., concur.