Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced an action against defendant, John R. Wicks, Jr., alleging a violation of Labor Law § 240 Lab.(1). The action was settled. Defendant refused to comply with the terms of the settlement agreement, and plaintiff obtained a judgment against defendant in the sum of $10,000. Defendant appealed from that judgment and filed an appeal bond issued by Fidelity Deposit Company of Maryland (F D) to stay execution of the judgment. We affirmed the judgment ( Rebmann v. Wicks, 227 A.D.2d 1009). In a separate action, defendant sued plaintiff for damages for breach of contract and obtained a judgment in the sum of $12,443.97. Plaintiff s attorney thereafter moved pursuant to Judiciary Law § 475 for an order fixing the amount of his attorney's charging lien and enforcing that lien, and defendant cross-moved for an order of setoff pursuant to Debtor and Creditor Law § 151.
Supreme Court properly determined that the attorney's charging lien is superior to defendant s right of setoff pursuant to the judgment obtained by defendant in a subsequent action ( see, Beecher v. Vogt Mfg. Co., 227 N.Y. 468, 473-474; Matter of Weiser v. City of New York, 16 A.D.2d 666, 667; Smith v. Cayuga Lake Cement Co., 107 App. Div. 524). The court erred, however, in directing F D to satisfier the amount of that lien. Although an attorney may summarily enforce a charging lien against his or her client ( see, Matter of Curran, 154 N.Y.S.2d 80; Shaw v. Shaw, 66 N.Y.S.2d 437), an attorney must commence a separate action to enforce the lien against third parties who are not his or her clients ( see, Matter of Salant, 158 App. Div. 697, 699-700, affd 210 N.Y. 622; Rochfort v. Metropolitan St. Ry. Co., 50 App. Div. 261). In addition, because no action has been commenced by plaintiff against F D to enforce the terms of the appeal bond, the court lacked jurisdiction to direct F D to satisfy the lien of plaintiff's attorney ( see, Anderson v. United States Fid. Guar. Co., 238 App. Div. 48, 49).
The court also erred in directing sua sponte that the lien of defendant s attorney be satisfied from the appeal bond. "A court may grant undemanded relief only if there is no substantial prejudice to the adverse party" ( Ressis v. Mactye, 98 A.D.2d 836, 837). Thus, we modify the order and judgment by vacating the third, fourth and fifth ordering and decretal paragraphs.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.