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In the Matter of NEW YORK DIET DRUG LITIGATION. CLARA APPEL-HOLE et al., Plaintiffs, v. WYETH-AYERST LABORATORIES et al., Defendants. PARKER WAICHMAN LLP et al., Inter

P W, the referring attorneys, claim that in a mass settlement of litigation arising from the use of Fen-Phen, settling attorneys Napoli, Kaiser Bern (NKB) misallocated settlement awards and costs to the referred clients. The court properly allowed P W, as well as a group of its clients, to intervene and seek disclosure of certain documents in support of a settlement order dated November 7, 2001. "The remedy for fraud allegedly committed during the course of a legal proceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR 5015 [a] [3]), and not by another plenary action collaterally attacking that judgment" ( St. Clement v Londa, 8 AD3d 89, 90). P W and its clients properly so moved. Furthermore, P W's action in moving to intervene was not untimely. To the contrary, any delay in P W's motion was due largely to NKB's own action in moving ex parte for the settlement order despite its own awareness that P W disputed the settlement allocations.

We have considered NKB's other contentions and find them unavailing. [ See 15 Misc 3d 1114(A), 2007 NY Slip Op 50647(U).]

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APPEL-HOLE v. BERN
(Jan 31, 2008)