Summary
In Kerner & Kerner v Dunham, (46 AD3d 372 [1st Dept 2007]), the court, affirmed the Supreme Court's dismissal of the complaint below (James, J.) for the plaintiff's failure to allege that the provisions of 22 NYCRR 137.1 (b) (2) and 137.6 (b) (2) were inapplicable to the plaintiff's claim for a sum in excess of $50,000.00.
Summary of this case from Feder Kaszovitz, LLP v. EdrichOpinion
No. 2258.
December 18, 2007.
Order, Supreme Court, New York County (Debra A. James, J.), entered October 20, 2006, which, in an action to recover attorneys' fees, granted defendants' motion to dismiss the complaint, without prejudice to institution of a new action, unanimously affirmed, without costs.
Kerner Kerner, New York (Richard A. Kerner of counsel), appellant pro se.
Weisberg Weisberg, Great Neck (Sidney A. Weisberg of counsel), for respondents.
Before: Tom, J.P., Friedman, Williams, McGuire and Kavanagh, JJ.
The complaint was properly dismissed for failure to allege that, as claimed by plaintiff in opposition to the motion, the dispute involves more than $50,000 and therefore is not covered by the Fee Dispute Resolution Program ( 22 NYCRR part 137; see 22 NYCRR 137.1 [b] [2]; 137.6 [b] [2]; Paikin v Tsirelman, 266 AD2d 136). We deem the motion court's dismissal to be without prejudice to a new action (see CPLR 5013). We have considered plaintiffs other arguments and find them to be unavailing.