MUELLER v. PACICCA (1998)

This civil action was commenced by plaintiff to recover attorney's fees for legal services rendered in connection with a domestic relations matter.   Defendant moves for an Order (1) granting leave to move for summary judgment pursuant to CPLR 3212(a);  (2) dismissing plaintiff's Complaint;  and (3) granting summary judgment on defendant's Counterclaim which seeks a refund of legal fees previously paid to and collected by the plaintiff.   The instant motion is unopposed.

 CPLR 3212(a) provides, in relevant part, that a motion for summary judgment “․ shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown ․” This statute was amended in 1996 (L.1996, ch. 492) to “address the proliferation of eleventh hour motions, made when there is inadequate time for reply or proper court consideration, and to prevent trial delays which often prejudice litigants who have spent extensive time and money in trial preparation.”  Auger v. State of New York, 236 A.D.2d 177, 179, 666 N.Y.S.2d 760 (3rd Dept.1997).   The statute, however, does not provide a safe haven for frivolous or meritless lawsuits and “foreclosing the opportunity for a summary judgment motion in a sense punishes the whole court system by keeping a case alive when an earlier arrangement for a decent funeral is possible.”   See, Siegel, 1996 Supplementary Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CLPR C3212:12, 1998 Pocket Part, at 61-62.   The trial court should therefore be afforded wide latitude with respect to determining whether “good cause” exists for permitting late motions.  Rossi v. Arnot Ogden Medical Center, 252 A.D.2d 778, 676 N.Y.S.2d 699 (3rd Dept.1998).  “Good cause” has been defined as “a written expression or explanation by the party or his legal representative evincing a viable, credible reason for delay, which, when viewed objectively, warrants a departure or exception to the timeliness requirement.”  Surace v. Lostrappo, 176 Misc.2d 408, 410, 673 N.Y.S.2d 543 (S.Ct. Nassau Cty.1998).

 Upon review of the procedural background of this action and applying the foregoing principles, the Court hereby grants the first branch of defendant's motion seeking leave to move for summary judgment pursuant to CPLR 3212(a).

 The pivotal issue of defendant's motion and the success of the case itself is the application and strict compliance by plaintiff with the matrimonial rules set forth in Part 136 of the Rules of the Chief Administrator of the Courts (22 NYCRR) and Part 1400 of the Joint Rules of the Appellate Division (22 NYCRR).

 It is well settled that a proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issue(s) of fact from the case.  Cox v. Kingsboro Medical Group, 88 N.Y.2d 904, 646 N.Y.S.2d 659, 669 N.E.2d 817 (1996).   Once the proponent has established its prima facie case for summary judgment, the non-moving party must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact.  Winters v. Menowitz, 226 A.D.2d 451, 641 N.Y.S.2d 43 (2nd Dept.1996).   It is issue finding, as opposed to issue determination, which is the key to summary judgment and papers must be scrutinized carefully in a light most favorable to the non-moving party.   Ptasznik v. Schultz, 223 A.D.2d 695, 637 N.Y.S.2d 469 (2nd Dept.1996).

22 NYCRR 136.5 states in part as follows:

(a) Where the attorney and client cannot agree as to the attorney's fee, the attorney shall inform the client in writing by certified mail or by personal service that he or she has 30 days from the receipt of the notice in which to elect to resolve the dispute by arbitration, the result of which is binding upon both attorney and client․

(b) If the client does not file the request for arbitration within the 30-day period, the attorney may commence an action to recover the fee and the client no longer shall have the right to request arbitration pursuant to this Part with respect to the fee dispute at issue.

(c) An attorney who institutes an action to recover a fee must allege in the complaint that the client received notice under this rule of his or her right to pursue arbitration and did not file a timely request for arbitration.

 The Court having carefully reviewed the Affirmation of Paul Jaffe, Esq., the Affidavit of Thomas Pacicca and all Exhibits annexed thereto, finds that plaintiff has patently failed to comply with the notice requirement of 22 NYCRR 136.5(a) and the pleading requirement set forth in 22 NYCRR 136.5(c).   Specifically, the moving papers show that defendant was duly served with a Summons and Complaint on September 10, 1997, but no notice to arbitrate was served upon defendant until September 18, 1997, some eight (8) days after the commencement of the action.   Since the notice pursuant to 22 NYCRR 136.5(a) is a condition precedent to suit, the Court finds the instant action was commenced in contravention of Part 136 of the Rules of the Chief Administrator of the Courts.   See, L.H. v. V.W., 171 Misc.2d 120, 653 N.Y.S.2d 477 (Civ.Ct. Bronx Co.1996).   Moreover, the complaint is itself jurisdictionally defective in that it fails to allege the requisite notice requirement (22 NYCRR 136.5[c] ).

Therefore, the second branch of defendant's motion for an Order dismissing plaintiff's complaint is granted.

 A retainer agreement is mandated by the matrimonial rules and the Code of Professional Responsibility.  McMahon v. Evans, 169 Misc.2d 509, 645 N.Y.S.2d 753 (Sup.Ct. Broome Co.1996).   The purpose of the rule is to inform and protect the matrimonial client who is about to be involved in what is frequently stressful litigation and who is in a particularly vulnerable position.   See, Tenzer Greenblatt LLP v. Rinfret, N.Y.L.J. 9/16/97, p. 27, col. 5 (Sup.Ct.N.Y.Co.1997).

22 NYCRR 1400.3 provides:

An attorney who undertakes to represent a party and enters into an arrangement for, charges or collects any fee from a client shall execute a written agreement with the client setting forth in plain language the terms of compensation and the nature of services to be rendered․

The Code of Professional Responsibility-Disciplinary Rule 2-106(C)(2)(B) ( 22 NYCRR 1200.11[c][2][ii] ) provides:

A lawyer shall not enter into an arrangement for, charge or collect ․ 2. Any fee in a domestic relations matter to which Part 1400 of the joint rules of the Appellate Division is applicable ․ (ii) unless a written retainer agreement is signed by the lawyer and client setting forth in plain language the nature of the relationship and the details of the fee arrangement.

 The law is clear that where an attorney fails to strictly comply with the mandates of 22 NYCRR 1400.3, that attorney is barred from collecting fees in a domestic relations matter.   See, Flanagan v. Flanagan, 175 Misc.2d 160, 668 N.Y.S.2d 302 (Sup.Ct.N.Y.Co.1997);  Forbes v. Forbes, N.Y.L.J. 2/26/97, p. 26, col. 1 (Sup.Ct.N.Y.Co.1997);  McMahon v. Evans, 169 Misc.2d 509, 645 N.Y.S.2d 753 (Sup.Ct. Broome Co.1996);  Philips v. Philips, 178 Misc.2d 159, 678 N.Y.S.2d 244 (Sup.Ct. Nassau Co.1998).   Simply put, since the defendant here did not sign a retainer agreement, plaintiff is not entitled to recover attorney's fees for any work performed in the matrimonial matter and must refund any fees previously collected.   See, McMahon, supra.

Accordingly, the third branch of defendant's motion is granted.   Judgment is awarded in favor of defendant and against plaintiff on defendant's counterclaim in the amount of $4,618.40.   Submit judgment for signature.

JO ANN FRIIA, J.