Summary
In Scordio, the Appellate Division, Second Department, held that the mandatory arbitration notice provided for by then section 136.5 did not apply where the client did not dispute the reasonableness of the fees charged, and specifically declined "to follow the rule adopted by the Appellate Division, First Department, which obligates an attorney to send such a notice even in the absence of any fee disagreement with a client."
Summary of this case from Messenger v. DeemOpinion
Submitted January 31, 2000
March 17, 2000
In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated March 18, 1999, as granted that branch of the motion of the nonparty Kenneth J. Weinstein which was for leave to enter a charging lien against her in the sum of $18,538 and denied her cross motion to require Kenneth J. Weinstein to repay all fees previously paid to him and to turn over her file.
Lawrence H. Bloom, New York, N.Y., for appellant.
Kenneth J. Weinstein, Garden City, N.Y., nonparty-respondent pro se.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, DANIEL F. LUCIANO NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is modified by deleting the provision thereof granting that branch of the motion of the nonparty Kenneth J. Weinstein which was for leave to enter a charging lien in the sum of $18,538 and substituting therefor a provision granting that branch of the motion to the extent of granting Kenneth J. Weinstein leave to enter a charging lien in the sum of $7,500; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a hearing to determine the amount of fees due Kenneth J. Weinstein over the sum of $7,500 on a quantum meruit basis.
The Supreme Court properly determined that the nonparty Kenneth J. Weinstein, the defendant's former attorney, was entitled to the $7,500 in attorney's fees which were awarded to him by a prior order of the same court, dated October 23, 1998. In addition, the court properly determined that Weinstein's discharge was without cause. As a result, a hearing was required to determine, on a quantum meruit basis, the remaining amount of fees due to Weinstein (see, Teichner v. W J Holsteins, 64 N.Y.2d 977, 979;Matter of Leopold, 244 A.D.2d 411; Oldendorf v. Oldendorf, 226 A.D.2d 790).
The defendant failed to proffer any evidence that Weinstein violated any of the court rules upon which she relied and, in fact, the evidence submitted in connection with the motion for a charging lien contradicts the defendant's claims (see, 22 NYCRR 136.5, 1200, 1400). Because the defendant never disputed the reasonableness of the fees charged by Weinstein, he was not required to send her a notice informing her of her right to elect arbitration of any fee dispute (see, 22 NYCRR 136.5, 1400.7;Moraitis v. Moraitis, 181 Misc.2d 510; K.E.C. v. C.A.C., 173 Misc.2d 592, 600-601). We decline to follow the rule adopted by the Appellate Division, First Department, which obligates an attorney to send such a notice even in the absence of any fee disagreement with a client (see, Paikin v. Tsirelman, A.D.2d; [1st Dept., Nov. 30, 1999]).
MANGANO, P.J., BRACKEN, LUCIANO, and SMITH, JJ., concur.