RECOVERING LEGAL FEES - PART 137

Zisholtz & Zisholtz, LLP v Mandel, 2018 NY Slip Op 07349, Decided on October 31, 2018, Appellate Division, Second Department:

"On the merits, in light of the absence of an enforceable agreement to settle this action, the Supreme Court should have granted the cross motion to dismiss the complaint pursuant to CPLR 3211(a)(7). "A plaintiff's failure to provide the defendant with written notice of his or her right to elect to submit the fee dispute to arbitration, and the failure to allege in the complaint that the defendant received such notice and did not file a timely request for arbitration, or that fee dispute arbitration is inapplicable to the matter for specified reasons, requires dismissal of the complaint" (Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 136 AD3d 878, 878-879; see Gary Friedman, P.C. v O'Neill, 115 AD3d 792, 793; Herrick v Lyon, 7 AD3d 571). Here, the complaint fails to allege either compliance with the notice requirements of 22 NYCRR 137.6(a)(1), or that the matter is not covered by the Fee Dispute Resolution Program (22 NYCRR part 137) for one or more reasons specified in 22 NYCRR 137.1 (see Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 136 AD3d at 879; Kerner and Kerner v Dunham, 46 AD3d 372). However, under the circumstances of this case, the dismissal is without prejudice to the commencement of a new action by the plaintiff, if it be so advised, following its compliance with the notice and arbitration requirements of 22 NYCRR part 137 (see Pascazi Law Offs., PLLC v Pioneer Natural Pools, Inc., 136 AD3d at 879)."