EDWARD KALLEN v. BARON (2007)

Order (Joan M. Kenney, J.), entered on or about May 18, 2006, affirmed, without costs.

We find no abuse of discretion in the grant of plaintiff's cross motion for leave to discontinue this action without prejudice.   Inasmuch as the sole remaining basis of defendant's pending summary judgment motion for dismissal is plaintiff's failure to comply with the notice provision of 22 NYCRR former 136.5, and considering that any dismissal on this ground would be without prejudice to the commencement of a new action upon compliance with the court rule (see Paikin v. Tsirelman, 266 A.D.2d 136, 699 N.Y.S.2d 32 [1999] ), dismissal of the action with prejudice is unwarranted.   We note that defendant no longer disputes that plaintiff filed the retainer agreement together with the statement of net worth (22 NYCRR § 1400.3) and released the file in the matrimonial action to defendant.

I respectfully dissent.   The plaintiff, an attorney, brought an action to recover legal fees, and the defendant moved for summary judgment based on the plaintiff's failure to inform the defendant that she could elect to resolve their fee dispute by arbitration, as provided in 22 NYCRR 1400.7.   The defendant's summary judgment motion also indicated that the plaintiff failed to file a retainer agreement with the court, that he improperly commenced an action against the defendant while he still acted as her attorney, and that he refused to release her papers.   The plaintiff offered no evidence in opposition to the defendant's summary judgment motion.

In Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d 147 (1st Dept.1997), the appellate division upheld an order dismissing a similar action premised on a fee dispute based on the attorney's failure to advise his client of the right to arbitration, and his failure to file a written retainer agreement.   On these bases alone, it is likely that the lower court would have granted summary judgment in favor of the defendant if the plaintiff had not moved to discontinue the action.   See also Paikin v. Tsirelman, 266 A.D.2d 136, 699 N.Y.S.2d 32 (1st Dept.1999) (reversing lower court's failure to vacate judgment in matrimonial fee dispute matter where counsel failed to plead compliance with arbitration notice requirements).   Under the circumstances, the plaintiff's unduly belated application to discontinue the lawsuit without prejudice should not have been granted- or should have been granted only with prejudice because this application appears to have been made at the point in the proceeding where the defendant was about to prevail.   See Baltia Air Lines, Inc., v. CIBC Oppenheimer Corp., 273 A.D.2d 55, 709 N.Y.S.2d 54 (1st Dept.2000);  NBN Broadcasting v. Sheridan Broadcasting, 240 A.D.2d 319, 659 N.Y.S.2d 262 (1st Dept.1997).   At the least, the court should have conditioned any discontinuance on plaintiff's payment of the defendant's costs.   See CPLR 3217(b);   Schimansky v. Moduline Industries, 79 Misc.2d 888, 361 N.Y.S.2d 610 (S.Ct.1974)

This constitutes the decision and order of the Court.

PER CURIAM.