Rosenblatt, J. P., dissents and votes to affirm the order insofar as appealed from, with the following memorandum: In my view, the plaintiff has stated a legal claim against Martinez, but not Futterman.
Futterman is not a party to the May 12, 1983, document, nor does the document recite that Futterman is obligated or expected to make any payment to the plaintiffs. Futterman is identified in the document as its draftsman, who, in preparing the document, is acting on behalf of his client, Martinez, in carrying out the desires and wishes of Martinez. Futterman was not representing the plaintiffs, nor on this record can there be any plausible claim that he was. In his affidavit, Futterman stated that "[n]either the firm or myself ever received any instructions, from, nor were we retained by the Plaintiffs. We never acted nor did we agree to act as Plaintiffs’ attorneys”. The plaintiffs claim they "discussed” the document with Futterman, but this is not enough to create an attorney-client relationship or to impose any obligation on Futterman to withhold money from his sole client, Martinez, and to give it to the plaintiffs.
In their first cause of action, the plaintiffs allege that the document "constitutes conflict of interest”, but do not explain how or why or offer viable support for this conclusory assertion. The first cause of action, also in conclusory terms, merely states that the document "constituted a lien upon a portion of the recovery applicable to the plaintiffs. Accordingly, the plaintiffs are entitled to 25% of the disbursements paid to the defendants”.
This Court has held in Datlof v Turetsky (111 AD2d 364, *791365), that "an agreement, either by parol or in writing, to pay a debt out of a designated fund does not operate to create an equitable lien upon the fund”. "The existence of an equitable lien,” we held, "requires an express or implied contract concerning specific property wherein there is a clear intent between the parties that such property be held, given or transferred as security for an obligation” (Datlof v Turetsky, supra, at 365 [emphasis supplied]).
In the case before us, there can be no equitable lien. Futterman was not a party to the document, there was no privity between him and the plaintiffs, he did not undertake to act as escrowee or holder of the funds, and there was no agreement on anyone’s part to hold the property "as security for an obligation” (Mateo Elec. Co. v Plaza Del Sol Constr. Corp., 82 AD2d 979). Beyond that, the plaintiffs have not sought and are not seeking to impose or foreclose a lien on property. As the plaintiffs allege, the property has undisputedly been given to Futterman’s client, Martinez, and the plaintiffs seek only a money judgment against Futterman "for treble damages in the sum of $1,250,000”. They do not, however, plead a breach by contract by Futterman—no doubt because he was not a party to any agreement—but base their claim for a money judgment against Futterman for "professional misconduct,” "deceit,” and "collusion,” as set forth in the second cause of action. The second cause of action, however, must fail because it is premised, erroneously, on the existence of a claimed relationship or duty between the plaintiffs and Futterman, and to the extent that it is not so premised, the second cause of action merely contains unsupported and conclusory allegations insufficient to sustain it against a motion to dismiss.
Lastly, the plaintiffs have not pleaded the existence of an assignment; nowhere in the complaint is any "assignment” mentioned, and there is no cause of action so designated (cf., Brinkman v Moskowitz, 38 Misc 2d 950). Instead, the plaintiffs now argue, in their brief, that in addition to the two causes of action described, there was a "breach of an agreement between plaintiffs and defendants”. This is insufficient to fasten liability on Futterman, who, under any view, was not, and is not, alleged to have been a contracting party. Therefore, I would affirm the order insofar as appealed from.