WALSH v. DUFFY (2006)

Appeal from an order of the District Court of Suffolk County, Sixth District (Patrick J. Barton, J.), dated July 26, 2005.   The order, insofar as appealed from in this action to recover a balance due for legal services, granted defendant's motion to vacate plaintiff's demand for a bill of particulars and denied plaintiff's cross motion to dismiss defendant's counterclaim for overcharges based on a claim that he was fraudulently induced to enter into a superseding retainer agreement.

Order, insofar as appealed from, affirmed without costs.

Plaintiff instituted this action to recover the balance allegedly due for legal services rendered on defendant's behalf in a matrimonial action.   In an amended answer, defendant counterclaimed to recover overcharges based, inter alia, on allegations that he was fraudulently induced to enter into a superseding retainer agreement providing for a higher hourly rate than the initial agreement.   In the order appealed from, the court, as relevant to this appeal, granted defendant's motion to strike plaintiff's demand for a bill of particulars and denied plaintiff's cross motion to dismiss defendant's counterclaim for overcharges based on a claim of fraudulent inducement.   Plaintiff challenges these rulings on appeal.

 Before plaintiff commenced this action, defendant had requested arbitration in accordance with the New York State Fee Dispute Resolution Program (see 22 NYCRR part 137).   The arbitration resulted in an award in favor of defendant on his claim for overcharges.   As a party aggrieved by the arbitration award, plaintiff had an absolute right to have the matter litigated anew post-arbitration, so long as his request was timely (22 NYCRR 137.8 [a] ), and it is not here claimed that plaintiff's request was untimely.   However, contrary to plaintiff's contention, since, in commencing this action, plaintiff effectively vacated the arbitrators' award in favor of defendant, defendant must be permitted to assert his claim for overcharges de novo in this action (see Wugalter v. Constable Merchandising Corp., 179 Misc.2d 312, 684 N.Y.S.2d 851 [1998];  Brooklyn Caledonian Hosp. v. Cintron, 147 Misc.2d 498, 557 N.Y.S.2d 842 [1990] ).

 In addition, the court providently exercised its discretion in granting defendant's motion to strike plaintiff's demand for a bill of particulars as it was palpably improper (see Erbesh v. Schwartz, 21 A.D.3d 532, 799 N.Y.S.2d 905 [2005];  Hillside Equities v. UFH Apts., 297 A.D.2d 704, 705, 747 N.Y.S.2d 541 [2002];  Scalone v. Phelps Mem. Hosp. Ctr., 184 A.D.2d 65, 76, 591 N.Y.S.2d 419 [1992];  Simpson Elec. Corp. v. Leucadia, Inc., 130 A.D.2d 738, 516 N.Y.S.2d 39 [1987] ).   The court was not required to prune plaintiff's improper demands (see Haszinger v. Praver, 12 A.D.3d 485, 486, 783 N.Y.S.2d 878 [2004] ).

In view of the foregoing, the order, insofar as appealed, is affirmed.