In what looks like a 9 year battle over attorney fees and legal malpractice allegations, it appears that everyone loses in this case.  Filemyr v Hall  2019 NY Slip Op 31526(U)  May 28, 2019  Supreme Court, New York County  Docket Number: 654563/2018  Judge: Andrew Borrok discusses limitations on attorney fee claims and the necessity of making concrete allegations of legal malpractice.

“This action arises from Mr. Filemyr’ s representation of the defendants as shareholders of 1885 –
93 7th Avenue HDFC in a separate action pursuant to a retainer agreement (the Retainer), dated
December 8, 2010 (NYSCEF Doc. No. 11). In that action, Mr. Filemyr was granted his motion
to withdraw as counsel on July 21, 2015 (NYSCEF Doc. No. 51). In his complaint, Mr. Filemyr
alleges breach of contract, and alternatively quantum meruit, for recovery of $34, 152.97 in unpaid legal fees. In their amended answer, the defendants assert three affirmative defenses and a
counterclaim for legal malpractice.”

“22 NYCRR 137 provides that if an attorney and client cannot agree on fees, the attorney is to
forward written notice to the client by certified mail or personal service. The Fee Dispute
Resolution Program, however, does not apply to “disputes where no attorney’s services have
been rendered for more than two years” (22 NYCRR § 137.1(6)). Failure to serve clients with
notice of their right to arbitrate, and failure to allege in a complaint that clients received such
notice and did not file a timely request for arbitration requires dismissal of the complaint (Paikin
v Tsirelman, 266 AD2d 136, 136-137 [1st Dept 1999]). It is undisputed that Mr. Filemyr did not
provide notice of the defendants’ right to arbitrate because he served the required notices on June
25, 2018 (NYSCEF Doc. No. 52, collectively the Notices), i.e., more than two years after he last
rendered attorney’s services. To wit, even though the defendants received notice from Mr. Filemyr, the notice was provided when the defendants’ right to arbitrate was already time barred
by 22 NYCRR § 137.1(6) (see NYSCEF Doc. No. 53). Therefore, Mr. Filemyr motion to
dismiss the defendants’ affirmative defenses based on laches/waiver/unclean hands is denied and
the defendant’s cross motion to dismiss the complaint is granted. ”

“In this case, the defendants’ assert conclusory allegations they would have recovered lost
proceeds of an apartment sale and saved legal fees but for Mr. Fil em yr’ s departure from the
ordinary standards of professional conduct and breach of fiduciary duty (NYSCEF Doc. No. 47,
iJ 19). While the amended answer refers to instances when the defendants were unhappy with
Mr. Fil em yr’ s representation, the defendants fail to plead specific factual allegations that
establish but for Mr. Fil em yr’ s representation, there would have been a more favorable outcome
in the underlying action (see Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [1st Dept
2001]). In their opposing papers, the defendants do not provide an affirmation in further support of their allegations. Accordingly, the defendants’ counterclaim for legal malpractice is
dismissed.”