Paikin v. Tsirelman

Appellate Division of the Supreme Court of New York

Paikin v. Tsirelman

266 A.D.2d 136, 699 N.Y.S.2d 32, 1999 N.Y. App. Div. LEXIS 12327

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 30, 1999

StatusPublished

Cited by8 cases

This text of 266 A.D.2d 136 (Paikin v. Tsirelman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Paikin v. Tsirelman, 266 A.D.2d 136, 699 N.Y.S.2d 32, 1999 N.Y. App. Div. LEXIS 12327 (N.Y. Ct. App. 1999).

Pincite

Opinion

—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about March 10, 1999, which denied defendant’s motion to vacate the judgment entered against him on October 6, 1998, unanimously reversed, on the law,. without costs, the judgment vacated and the complaint dismissed, without prejudice. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint. Appeal from order, same court and Justice, entered October 6, 1998, unanimously dismissed, without costs, as academic in light of the foregoing determination.

In this action for unpaid attorneys’ fees in a matrimonial action, plaintiffs failure to provide his client with 30 days’ writ[137]*137ten notice of his right to arbitrate any fee dispute (22 NYCRR 136.5 [a]) and his failure to allege in his complaint that the client received such notice and did not file a timely request for arbitration (22 NYCRR 136.5 [c]) require dismissal of the complaint (see, Julien v Machson, 245 AD2d 122).

Plaintiffs claim that the foregoing notice requirement was never triggered because of his client’s failure to object to his billings and that, therefore, he is entitled to recover on the basis of an account stated is without merit. As found by the court in Lewis & Merritt v Smith (170 Misc 2d 192, 194 [Thomas P. Phelan, J.]), to interpret the common-law principles of an account stated, so as to find that a matrimonial client’s failure to affirmatively object to his or her attorney’s billings may provide a basis for circumventing the notice and pleading requirements of 22 NYCRR 136.5, would effectively eviscerate the fee arbitration rules governing domestic relations matters. Concur — Sullivan, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.

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—Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about March 10, 1999, which denied defendant’s motion to vacate the judgment entered against him on October 6, 1998, unanimously reversed, on the law,. without costs, the judgment vacated and the complaint dismissed, without prejudice. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint. Appeal from order, same court and Justice, entered October 6, 1998, unanimously dismissed, without costs, as academic in light of the foregoing determination.

In this action for unpaid attorneys’ fees in a matrimonial action, plaintiffs failure to provide his client with 30 days’ writ[137]*137ten notice of his right to arbitrate any fee dispute (22 NYCRR 136.5 [a]) and his failure to allege in his complaint that the client received such notice and did not file a timely request for arbitration (22 NYCRR 136.5 [c]) require dismissal of the complaint (see, Julien v Machson, 245 AD2d 122).

Plaintiffs claim that the foregoing notice requirement was never triggered because of his client’s failure to object to his billings and that, therefore, he is entitled to recover on the basis of an account stated is without merit. As found by the court in Lewis & Merritt v Smith (170 Misc 2d 192, 194 [Thomas P. Phelan, J.]), to interpret the common-law principles of an account stated, so as to find that a matrimonial client’s failure to affirmatively object to his or her attorney’s billings may provide a basis for circumventing the notice and pleading requirements of 22 NYCRR 136.5, would effectively eviscerate the fee arbitration rules governing domestic relations matters. Concur — Sullivan, J. P., Nardelli, Williams, Mazzarelli and Andrias, JJ.

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Bluebook (online)

266 A.D.2d 136, 699 N.Y.S.2d 32, 1999 N.Y. App. Div. LEXIS 12327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paikin-v-tsirelman-nyappdiv-1999.

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