David J. Gold, P.C. v. R.K.E. LLC

• Court: Appellate Terms of the Supreme Court of New York
• Decided: September 30, 2016
• Docket: 2016 NYSlipOp 51386(U)
• Status: Published

Opinion

David J. Gold, P.C., Plaintiff-Respondent,

against

R.K.E. LLC, Richard Ente and Kerri Ente, Defendants-Appellants.

Defendants, as limited by their brief, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated January 6, 2016, which denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).

Per Curiam.

Order (Debra Rose Samuels, J.), dated January 6, 2016, affirmed, with $10 costs.

The motion court correctly concluded that the retainer agreement proffered by defendants in support of their CPLR 3211(a)(1) and (7) motion to dismiss does not conclusively establish a defense to plaintiff law firm's action to recover for legal services rendered (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The aspects of the retainer agreement that allegedly rendered it noncompliant with 22 NYCRR 1215.1 do not, as a matter of law, bar plaintiff from recovering legal fees for services rendered (see Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 62—64 [2007]).

In addition, plaintiff's submissions in opposition to the motion raise questions as to whether the retainer agreement, which applied to an action by one Krystyna Legut, applied to legal services rendered in the underlying third-party action against other entities. Even if a further retainer was required for the third-party action, plaintiff would not be precluded from seeking recovery of legal fees under such theories as services rendered, quantum meruit and account stated (see Ferst v Abraham, 140 AD3d 581, 582 [2016]; Notrica v North Hills Holding Co., LLC, 105 AD3d 826 [2013]; Roth Law Firm, PLLC v Sands, 82 AD3d 675, 676 [2011]).

The complaint also alleges compliance with the rules pertaining to fee disputes and arbitration under 22 NYCRR 137.6. The allegation that defendants never received the mandatory notice to arbitrate is unsupported by an affidavit based on personal knowledge.

We have considered defendants' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: September 30, 2016