Tray v. Thaler & Gertler, Llp

• Decision Date: 26 September 2007
• Docket Number: No. 45887/06,45887/06
• Citation: 842 N.Y.S.2d 713,2007 NY Slip Op 27391,17 Misc.3d 617
• Parties: JUDITH A. TRAY, Plaintiff, v. THALER & GERTLER, LLP, Defendant.
• Court: New York District Court

17 Misc.3d 617

842 N.Y.S.2d 713

2007 NY Slip Op 27391

JUDITH A. TRAY, Plaintiff, v. THALER & GERTLER, LLP, Defendant.

No. 45887/06

District Court of Nassau County, First District.

September 26, 2007.

Judith A. Tray, plaintiff pro se.

Thaler & Gertler, LLP, defendant pro se.

OPINION OF THE COURT

SONDRA K. PARDES, J.

The plaintiff commenced this action to obtain a de novo review of the facts with respect to the parties' fee dispute arbitration conducted under the Unified Court System's Attorney-Client Fee Dispute Resolution Program pursuant to 22 NYCRR 137.0 et seq.

Background

On or about June 14, 2005, the plaintiff retained the defendant law firm to prosecute an appeal with respect to a Surrogate's Court proceeding and signed an agreement to pay an "initial advance retainer" in the sum of $6,000. The plaintiff ultimately paid $5,638.84 toward the retainer. The defendant law firm prepared and filed the record on appeal and the appellant's brief. The defendant sent the plaintiff periodic itemized bills for its legal services and the costs for disbursements. The plaintiff failed to pay these bills. On or about October 16, 2006, the parties participated in an attorney-client fee dispute arbitration pursuant to 22 NYCRR part 137. That arbitration proceeding resulted in an amended arbitration award dated November 13, 2006, granting the defendant law firm a judgment against the plaintiff herein in the sum of $6,538.79.

Section 137.8 of the rules governing the Fee Dispute Resolution Program entitled "De novo review" provides, in pertinent part, that: "(a) A party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed."

The plaintiff commenced this action on December 20, 2006 by filing an endorsed summons and complaint. The complaint specifies the following cause of action: "Fee dispute with attorney went to arbitration. Lost arbitration disputing decision."

The defendant law firm moved to dismiss this action on the grounds, inter alia, that the plaintiff failed to commence this action within the time prescribed by the rule. In a decision dated March 28, 2007, this court (Engel, J.) found that the plaintiff had filed the action within the time prescribed by 22 NYCRR 137.8 and denied the defendant's motion to dismiss this action. The defendant law firm did not answer the complaint or counterclaim for relief in this action.

This matter came on for trial on May 21, 2007. On that date Richard Gertler, Esq., testified for the defendant. Mr. Gertler described the circumstances under which his firm was retained by the plaintiff and he described the nature of the legal services performed by his law firm. They reviewed "two banker boxes" full of documents pertaining to the Surrogate's Court proceeding, conducted legal research, consulted with their client and prepared the record on appeal and the brief. They sent the plaintiff periodic itemized bills for their services and disbursements, including the appellate printer's bill for $2,228.88, and she failed to make timely payments.

The plaintiff, Judith Tray, testified about the circumstances that led her to retain the defendant law firm. The plaintiff spoke at length about her dissatisfaction with the way her case was handled and stated that she was "unhappy with the extra charges," but acknowledged that she never sent a letter to Mr. Gertler detailing her complaints, as required by their retainer agreement. The plaintiff stated that she paid the retainer fee of $6,000 and assumed that any additional "incidental" fees, including the printer's bill, would be included in the initial retainer fee (despite the clear language in the parties' retainer agreement to the contrary). Later, she acknowledged that she only paid $5,400 of the $6,000 retainer fee.

In response to the court's question, the plaintiff acknowledged that she commenced this action because she was dissatisfied with the decision of the arbitrator in the fee dispute arbitration which found that she owed the defendant law firm $6,538.79 for fees and disbursements. The plaintiff confirmed that she is asking this court "to render a decision declaring that the arbitrator made a mistake." It is undisputed that the plaintiff has not paid the sum directed by the arbitrator or any part thereof.

The threshold question before this court is whether the plaintiff utilized the appropriate procedure to obtain a de novo review of the issues addressed in the attorney-client fee dispute arbitration proceeding in this court of limited jurisdiction. The Fee Dispute Resolution Program (FDRP) (22 NYCRR 137.0 et seq.) was enacted in 2002 to provide "for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation" (22 NYCRR 137.0). As indicated above, section 137.8 provides that a party "aggrieved" by the award "may commence an action on the merits of the fee dispute in a court of competent jurisdiction." However the rule is silent as to what procedure should be utilized to commence such an action. A number of courts of limited jurisdiction have been presented with cases wherein parties dissatisfied with the arbitrator's award after an FDRP arbitration proceeding have attempted to obtain a "de novo review." This court reviewed several unreported decisions issued by courts of limited jurisdiction in which each of the courts struggled to determine what procedure should be used to "commence an action" to obtain a de novo review of an FDRP arbitration, with conflicting results.

In Borgus v Marianetti (7 Misc 3d 1003[A], 2005 NY Slip Op 50420[U] [Rochester City Ct 2005]), the court specifically addressed the question of "What Procedures Must an Aggrieved Party Follow to Obtain De Novo Review Following an Arbitration Decision Under the Fee Dispute Resolution Program?" (2005 NY Slip Op 50420[U], *4.) After considering various options, the court concluded that inasmuch as the policy underlying the FDRP was to simplify and expedite the resolution of fee disputes, an aggrieved party should be able to file a "simple demand" for a trial de novo, rather than commence a new action against the other party. However, this conclusion flies in the face of the clear language of section 137.8 which requires an aggrieved party to "commence an action."

In Mahl v Rand (11 Misc 3d 1072[A], 2006 NY Slip Op 50518[U] [Civ Ct, NY County 2006]), the court noted that the defendant, the aggrieved party after a dispute arbitration, made repeated attempts to commence a proceeding for a trial de novo in the Civil Court of the City of New York. "Each time, the client was...