Opinion
570704/09.
Decided August 9, 2010.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), entered November 22, 2006, which granted defendant's motion to vacate a default judgment.
PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ.
Order (Manuel J. Mendez, J.), entered November 22, 2006, affirmed, without costs.
Plaintiff law firm commenced this action to recover approximately $19,000 in legal fees from defendant, whom plaintiff represented in a prior judicial proceeding. Plaintiff's complaint contained no allegations with respect to its compliance with the requirements of part 137 of the Rules of the Chief Administrator of the Courts ( 22 NYCRR 137.0 et seq.), which requires, among other things, that an attorney, under certain circumstances, notify the client of the client's right to arbitrate a fee dispute between the parties ( 22 NYCRR 137.6[a][1]).
Upon defendant's failure to answer the complaint, plaintiff obtained a default judgment against defendant. On her subsequent motion to vacate the default judgment, defendant argued, among other things, that the amount of legal fees sought by plaintiff was excessive as a result of overbilling and overcharging for certain services. Defendant also asserted that she wished to arbitrate the fee dispute; defendant's proposed answer, which she submitted in support of her motion, contained an affirmative defense requesting arbitration of the dispute. In its papers submitted in opposition to defendant's motion, plaintiff addressed neither defendant's request to arbitrate the matter nor the requirements of part 137. Civil Court granted defendant's motion, vacated the default judgment and permitted defendant to interpose her answer.
Civil Court properly granted defendant's motion, since plaintiff failed to comply with a condition precedent to commencing this action ( see Hobson-Williams v Jackson , 10 Misc 3d 58 ). Specifically, plaintiff failed to allege in the complaint that (1) defendant received notice of her right to arbitrate the dispute and did not file a timely request for arbitration, or (2) that this fee dispute is not governed by part 137 ( see 22 NYCRR 137.6[b]; see generally 22 NYCRR 137.2[a]). Generally, where a plaintiff-attorney fails to satisfy the pleading requirements of 22 NYCRR 137.6(b), the appropriate remedy is dismissal of the action with leave to replead or without prejudice to a new action ( see Kerner Kerner v Dunham , 46 AD3d 372 ; Hobson-Williams, supra; see also Harrick v Lyon, 7 AD3d 571; Paikin v Tsirelman, 266 AD2d 136; cf. Nimkoff Rosenfeld Schechter, LLP v O'Flaherty , 71 AD3d 533). Here, however, defendant neither requested dismissal of the complaint nor cross-appealed from the order on appeal, which vacated the default judgment and allowed defendant to answer the complaint. In this posture, our affirmance of the order is without prejudice to a motion by defendant before Civil Court seeking the appropriate relief.
In affirming, we note plaintiff's extreme delay in perfecting the within appeal.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
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