Plaintiff attorney loses fee case against pro-se client because he could not show substantial compliance with the matrimonial billing rules of 22 NYCRR 1400, et seq in Swergold v. Weinrib 2021 NY Slip Op 02555
Decided on April 28, 2021Appellate Division, Second Department.
“The plaintiff attorney represented the defendant in a matrimonial action, in which the Supreme Court directed the defendant’s former husband to pay the plaintiff an attorney’s fee in the sum of $100,000. Following the former husband’s failure to pay, the plaintiff commenced the instant action, inter alia, to recover on an account stated, alleging that the defendant failed to pay the [*2]plaintiff’s legal fees in connection with the matrimonial action. In an amended verified answer, the defendant asserted counterclaims, including to recover damages for legal malpractice. The plaintiff moved for summary judgment on the complaint and pursuant to CPLR 3211(a) to dismiss the counterclaims. In an order entered March 2, 2017, the Supreme Court, among other things, denied those branches of the plaintiff’s motion which were for summary judgment on the cause of action to recover on an account stated and pursuant to CPLR 3211(a) to dismiss the defendant’s legal malpractice counterclaim.
Thereafter, the defendant made a motion denominated as a motion in limine, inter alia, to preclude the plaintiff from presenting evidence pertaining to legal fees based upon a violation of 22 NYCRR 1400.3. In an order dated July 11, 2018, the Supreme Court treated the defendant’s motion as a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and granted the motion to the extent of requiring the plaintiff to demonstrate his compliance with 22 NYCRR 1400.3. In an order dated December 28, 2018, the court determined that the plaintiff failed to demonstrate his substantial compliance with 22 NYCRR 1400.3 and granted the defendant’s motion to dismiss the complaint.
Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion to dismiss the complaint based upon the plaintiff’s failure to demonstrate his substantial compliance with 22 NYCRR 1400.3 (see Montoya v Montoya, 143 AD3d 865; Badawi v Alesawy, 135 AD3d 793, 795; Cornish v Eraca-Cornish, 107 AD3d 1322, 1326; Wagman v Wagman, 8 AD3d 263). “