In this unusual case, Zanani v Scott Seidler Family Trust 2023 NY Slip Op 00836
Decided on February 14, 2023 Appellate Division, First Department, the attorney brought the claim for legal fees as a special proceedings, seeing a declaratory judgment that he was owed money. Supreme Court analyzed his claim, and dismissed it in favor of a regular plenary proceeding seeking a breach of contract or quantum meruit claim.

Dismissal was improper. “Supreme Court should have converted the special proceeding into a plenary action rather than dismissing the petition, as CPLR 103(c) “prohibits dismissal of [a] proceeding solely on the ground that it was not brought in the proper form” (Matter of Greene v. Finley, Kumble, Wagner, Heine & Underberg, 88 AD2d 547, 548 [1st Dept 1982]; see Matter of Jacob D. Fuchsberg Law Firm v Danzig, 248 AD2d 178, 179 [1st Dept 1998]).

We note that petitioner withdraws his claims except for those asserting breach of contract and account stated. Nonetheless, we decline petitioner’s request to construe the petition and answer as summary judgment papers and to summarily adjudicate his remaining claims at this stage. When a special proceeding is converted into a plenary action in accordance with CPLR 103(c), the petition is deemed a complaint, not a motion for summary judgment (see Matter of David H. Berg & Assoc. v Weksler, 193 AD3d 612, 613 [1st Dept 2021]). The record may present material issues of fact as to whether petitioner is entitled to recover under either remaining cause of action, or whether he committed legal malpractice, and these issues are for the motion court to address in the first instance (see Commissioner of the State Ins. Fund v Weissman, 90 AD3d 417, 417-418 [1st Dept 2011]; Nationwide Mut. Ins. Co. v Hausen, 143 AD2d 577, 581 [1st Dept 1988]).”