Opinion
2003-1416 WC.
Decided November 1, 2004.
Appeal by defendant from a small claims judgment of the City Court, City of Yonkers, Westchester County (A. Doran, J.), entered June 17, 2003, in favor of plaintiff in the principal sum of $1,800.
Judgment unanimously reversed without costs and matter remanded for a new trial.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
The instant small claims action was brought by plaintiff to recover fees for legal services rendered to defendant in a matrimonial action. Although the court awarded plaintiff the amount sought, there was no showing at trial that plaintiff complied with the matrimonial rules governing fee disputes ( 22 NYCRR Part 137) or with the rules pertaining to retainer agreements in domestic relations matters ( 22 NYCRR Part 1400). An attorney may be precluded from recovering fees from his or her client where the attorney has failed to comply with said rules ( see Wagman v. Wagman, 8 AD3d 263). Although the signed retainer agreement as well as various billing statements were purportedly submitted to the court, they were not adequately described in the record, and were not received into evidence. Given the inadequate state of the record, we believe that substantial justice would best be served by trying this matter anew, where documentary evidence necessary to resolve the issue may be properly admitted into evidence, and where the court may explore whether plaintiff in fact complied with said rules, including whether defendant was provided with the statement of client's rights and responsibilities ( 22 NYCRR 1400.2), whether the retainer agreement contained the requisite language regarding discharge and resolution of fee disputes, and whether a written "Notice of Client's Right to Arbitrate" was properly forwarded to defendant ( 22 NYCRR 137.6). It is noted that should the trial court determine that defendant did not actually dispute the reasonableness of the fees, notice of the right to arbitrate is not required ( see Scordio v. Scordio, 270 AD2d 328).