DeFilippo v. Gerbino, 2005 NY Slip Op 52297(U) (NY 12/15/2005)

• Decision Date: 15 December 2005
• Docket Number: 35625/04.
• Citation: 2005 NY Slip Op 52297(U)
• Parties: MICHAEL DeFILIPPO, Plaintiff, v. SARA C. GERBINO, Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 1

2005 NY Slip Op 52297(U)

MICHAEL DeFILIPPO, Plaintiff, v. SARA C. GERBINO, Defendant.

35625/04.

Civil Court of the City of New York, Richmond County.

Decided December 15, 2005.

Thomas R. Adinolfi, Esq., Law Office of Michael J. DeFilippo, Staten Island, NY, Counsel for Plaintiff.

Stewart B. Schachner, Esq., Staten Island, NY, Counsel for Defendant.

PHILIP S. STRANIERE, J.

The defendant, Sara C. Gerbino moves for an order dismissing the plaintiff's complaint and further ordering the plaintiff to comply with the decision of The Richmond County Bar Association fee arbitration panel, rendered in the defendant's favor, following a legal fee dispute between the plaintiff and the defendant. The plaintiff, an attorney, commenced this action against the defendant to enforce the terms of a retainer agreement under which the plaintiff performed legal services for the defendant and for which the plaintiff alleges he is entitled to be paid $19, 280.00.

In April, 2002, the defendant retained the plaintiff regarding Medicaid and Estate planning issues. The defendant allegedly paid the plaintiff $19, 280.00 in two installments for those services. Thereafter, the defendant discharged the plaintiff and sought fee arbitration with the Richmond County Bar Association, utilizing its fee dispute arbitration program. On December 3, 2003, the defendant signed an acknowledgment that the determination of the arbitrators would be binding on both the lawyer and the defendant unless "either party rejects the arbitrator's award by commencing an action on the merits of the fee dispute (trial de novo) in a court of law within 30 days." There is no indication that the plaintiff objected to the arbitration.

On March 29, 2004, after considering testimony and evidence, the fee dispute arbitration panel rendered a determination which found that Sara C. Gerbino was entitled to a refund of $10,755.00 from Michael DeFilippo. The defendant has attached as an exhibit, a copy of the Notice of Arbitration Award, dated March 29, 2004, which notified the parties of the panel's determination and the fact that the award is binding unless either party rejects the award by commencing a trial de novo within thirty days of the date that the arbitrators mailed the decision. The defendant asserts that she commenced an action in Supreme Court, although she provides no details regarding the action

On June 18, 2004 the plaintiff commenced this action, seeking a trial de novo on the issue of his entitlement to the legal fee. Pursuant to the rules of the Richmond County Bar Arbitration panel as mandated by the Fee Dispute Resolution Program established by Part 137 of the Rules of Chief Administrator (22 NYCRR § 137.0 et seq), the parties are bound by the arbitrators' finding unless either side commences a trial de novo within thirty days from the date of the mailing of the notice of the award.

Since the plaintiff commenced this action well over thirty days after the presumed mailing of the award, the action is untimely and therefore must be dismissed. The Court notes that the plaintiff has not contested the date that the arbitrators mailed award. However, since according to the rules of the arbitration panel, the date of the award's mailing is a significantly time-sensitive event, an affidavit of mailing, while not essential in this case, would be necessary proof when the mailing date is a contested issue. Since neither party provided an affidavit of mailing, the Court presumes that one is not regularly prepared by the arbitration panel. Such a practice, if continued, may render unnecessary confusion in actions involving trials de novo. The Court recommends that the Richmond County Bar Association adopt a procedure to memorialize the date of mailing.

In addition, the plaintiff's action is one in the nature of declaratory relief in that it seeks a determination contrary to the arbitrators' finding that he must refund a portion of the fee that he is entitled to retain the fee that he has already received from the defendant. As such, this Court lacks the jurisdiction to award the plaintiff declaratory relief. Civil Court may only grant declaratory relief in certain limited cases (Civil Court Act 212(a)).

Under the CPLR a party may make an application to vacate or modify an arbitrator's award within ninety days of the delivery of the award. Generally, such an action must be commenced by special proceeding and be based upon the grounds articulated in CPLR 7511. Pursuant to CCA 206, the Civil Court has jurisdiction over such actions. However, the plaintiff's request for relief is not in the nature of a proceeding to vacate or modify the award but rather one for declaratory relief, for which the Civil Court lacks jurisdiction. The question remains as to whether the scheme of Part 137, as configured, would allow a party to vacate or modify the arbitrators' award by means of judicial review pursuant to Article 75 of the CPLR. Professor Siegel contends that the trial de novo provision of the rules, subject to the thirty day time constraint, limits the availability of judicial review to that remedy, foreclosing the losing party from utilizing the Article 75 proceeding to modify or vacate the award (See 119 Siegel's Prac. Rev. 1).

Although the Rules of the Chief Administrator present a detailed procedure for fee arbitration and were designed to facilitate the resolution of attorney-client disputes outside the judicial forum, they permit a trial de novo¹ under...