One piece of advice repeated endlessly at CLEs is that attorney fee cases created legal malpractice counterclaims.  In Jeffrey M. Rosenblum, P.C. v Casano  2014 NY Slip Op 51629(U)  Decided on November 19, 2014  District Court Of Nassau County, First District  Fairgrieve, J. we see a sterling example of this problem.  Attorney lost attorney fee arbitration and started a trial de novo, once again seeking the fees.  This time there was a counterclaim, which Plaintiff fails to get dismissed.

"In her Verified Answer with Counterclaims (Plaintiff’s Exhibit B), defendant sets forth [*2]and classifies each of the five (5) counterclaims raised therein. They are designated as Breach of Contract (First and Second Counterclaims), Unjust Enrichment (Third Counterclaim), Declaratory Judgment (Fourth Counterclaim), and Attorney Malpractice (Fifth Counterclaim).

Initially, plaintiff’s counsel presses two arguments for dismissal of the first four counterclaims. First, she argues that pursuant to CPLR 3211(a)(2), this court lacks subject matter jurisdiction because "the monetary jurisdictional limit of the District Court is $15,000," which these counterclaims exceed (Affirmation in Support, ¶ 22). To the contrary, however, this court "shall have jurisdiction of counterclaims … for money only, without regard to amount" (UDCA §208[b]). Accordingly, plaintiff’s argument characterizing the amount sought by defendant’s counterclaims as exceeding statutory authority, is rejected. Therefore, its requests for dismissal on this basis are denied.

The third counterclaim is clearly marked as one seeking relief from plaintiff’s unjust enrichment. " The theory of unjust enrichment lies as a quasi-contract claim’" and contemplates "an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142, 879 NYS2d 355, 907 NE2d 268 [2009], quoting Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572, 807 NYS2d 583, 841 NE2d 742 [2005])" (Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516 [2012]). "The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered" (Greenfield M.D., P.C. v Long Beach Imaging Holdings, LLC, 114 AD3d 888, 889, citing Paramount Film Distribution Corporation v State of New York, 30 NY2d 415, 421 [1972] [remainder of citation omitted]).

"Although a claim for unjust enrichment involves equitable considerations’, it is essentially a claim for a money judgment which is covered within the jurisdictional boundaries contemplated for the Civil Court. A court, of course, has the inherent right to take equitable considerations into account (Dobbs, Remedies, § 2.1, p 28), and since they are merely reflections of fairness, no court, unless expressly limited by a statute, should deprive itself of the capacity to take them into account where the suit involves money damages only (Fiona Press, Inc. v Hewig & Marvic, Inc., 122 Misc 2d 680-681 [Civil Court, NY County 1984], emphasis added). Notably, "[t]he [New York City Civil Court Act ("NYCCCA")] is the original of the uniform acts. The second of them, also effective on September 1, 1963, is the Uniform District Court Act [*3](UDCA), which was modeled on and is in many instances identical to the NYCCCA" ( David D. Siegel, General Commentary on the Lower Court Acts (NYCCCA, UDCA, UCCA and UJCA) and Their Background, McKinney’s Cons Laws of NY, Book 29A, p 9 [1989 ed])."