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Supreme Court, Appellate Division, First Department, New York.

XAO HE LU, Plaintiff-Appellant, v. Steven B. ROSS, etc., Defendant-Respondent.

Decided: May 06, 2004

NARDELLI, J.P., SAXE, WILLIAMS, FRIEDMAN, JJ. Xao He Lu, appellant pro se. Steven B. Ross, New York, respondent pro se.

Judgment, Supreme Court, New York County (Sherry Klein Heitler, J.), entered July 25, 2003, dismissing the complaint pursuant to an order which, in an action to recover a portion of a fee paid on plaintiff's behalf to defendant attorney, granted defendant's motion to dismiss the complaint on the basis of documentary evidence, unanimously affirmed, without costs.

 Plaintiff is not entitled to any refund of the amount paid defendant, since much more than that amount had been earned based on the hourly rates in the parties' retainer agreement that were to apply if plaintiff discharged defendant, as he did, and plaintiff does not claim that defendant's billing records do not accurately reflect the number of hours worked.   We note that plaintiff does not allege any malpractice or breach of contract by defendant, only disagreements with him over litigation strategy and tactics.   Nor can defendant's nonparticipation in a bar association fee dispute proceeding estop him herein, where it appears that the complaint herein was defendant's first notice of the bar association proceeding, and it does not appear that the bar association forum has made any rulings with respect to the merits of plaintiff's application.