Matter of Del Vecchio & Recine, LLP. v Udell

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Matter of Del Vecchio & Recine, LLP. v Udell 2012 NY Slip Op 31355(U) May 8, 2012 Supreme Court, Nassau County Docket Number: 17845-11 Judge: Arthur M. Diamond Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------------------------------------------------------------- ----)( [* 1] SUPREME COURT - STATE OF NEW YORK Present: HON. ARTHU M. DIAMOND Justice Supreme Court ----------------------------------------------------------------------- x TRIL PART: 10 In the Matter of the Fee Arbitration Proceeding Pursuant to Par 137 of the Rules of the Chief Administrator of the Courts Between, NASSAU COUNTY DEL VECCHIO & RECINE, LLP. Petitioner, INDEX NO:17845- -andMOTION SEQ NO. VESNA UDELL, Respondent. SUBMIT DATE:03/07/12 The following papers having been read on this motion: Notice of Petition........................................ o p p os i ti 0 D................................................... Motion by petitioner , Del Vecchio & Recine , LLP (" Del Vecchio ), for an Order of this Court , pursuant to CPLR 97510 , confirming the determination of the arbitrators , directing that judgment be entered thereon , and awarding costs and disbursements , is granted. Motion by petitioner , Vesna Udell , for an Order of this Cour , vacating the arbitration award granted to Del Vecchio & Recine, and awarding legal fees to her in the amount of$5 000 is denied. I The instant petitions arise from an underlying fee dispute between the attorney law firm and its former client. The matter was heard before a panel of arbitrators, and the law firm was awarded the amount of $45 532. 33 against the client. FACTS The paries entered into a Retainer Agreement , dated Januar 9 , 2008 , where Udell retained Del Vecchio for purposes of negotiating a settlement agreement (" Stipulation ) with her spouse. She It is noted that Vesna Udell had fied her Februar 22 2012 petition under a separate index number, although the same could have been filed as a cross motion opposing Del Vecchio & Recine , LLP' s motion , fied on December 22 2011. [* 2] paid a retainer of $15 000. The agreement provided that in the event of a fee dispute , such dispute would be resolved though the Fee Dispute Resolution Program (" FDRP" ), under 22 NYCRR 9 137. , and " resort to FDRP shall constitute final and binding arbitration . Furer , under the Retainer Agreement , both paries waived their rights to a trial de novo. According to the defendants , Udell exhausted the initial retainer by Januar, 2009. As she failed to make further payments , Del Vecchio , moved this Court for interim legal fees , which were awarded to Udell from her spouse , Blaine Udell , in the amount of$l 0 000. Notwithstanding Udell' indebtedness , the law firm continued to represent her in what was described as a " contentious matrimonial matter. The firm , in addition to dealing with Udell , was subjected to harassing and threatening conduct by her spouse and his attorneys. Del Vecchio , at the time of its request for arbitration , claimed it was owed legal fees from Udell in the amount of $51 , 185. 22. Udell takes specific issue with ARTICLE VII of the Stipulation , ,-2 ( c), which provides in relevant par the total sum of$45 000 (is) to be paid to the Wife s attorney on behalf of Wife... ( see Petition , V esna Udell , Exhibit B). As such , her former spouse , Blaine Udell , was obligated to tender the sum of $45 000 to Del Vecchio. She claims that she has paid the firm an additional 000 while her former husband tendered the sum of $32 500. According to Udell , Blaine Udell owes the firm a balance of $12 500 , which he attempted to pay and the law firm refused to accept. Further , she insisted to the firm that a clause be included in the stipulation providing that upon payment of$45 000 in legal fees , the firm would waive any future claim against her for further fees. However , because she is a " layman , she did not understand that such language could not be included as Del Vecchio was not a party to the Stipulation between she and her former husband. Udell contends that , at best , the firm is owed $12 500. Del Vecchio filed for resolution through FDRP and the matter was heard on December 15 2011. The ensuing award set forth the amount as due and owing to Del Vecchio from Udell , at $45 532. 33. The law firm then fied the instant motion seeking confirmation of the award and a . judgment against Udell. Udell later filed a petition seeking a vacatur ofthe arbitrator s award. Upon a motion from Del Vecchio , the both petitions were consolidated. ARGUMENTS Implicit in Udell' s argument is that arbitrators ' decision was not proper as they did not allow [* 3] Blaine Udell to testify in the proceedings. His testimony would have confirmed that Vesna Udell' counsel and principal of law firm , Phylis Recine , agreed that the $45 000 referenced in the Stipulation , would satisfy her indebtedness to the firm , in full. Notwithstanding, the foregoing, Udell consistently complained to the firm about being over biled. Del Vecchio argues that an arbitration award can only be vacated under certain circumstances. Udell has failed to provide any evidence to support that such circumstances existed. Furer, it was not improper to exclude the appearance of Blaine Udell as such testimony was already offered by Vesna Udell. Del Vecchio , in addition the pleadings , anexes copies of its biling statements as supporting evidence. DISCUSSION Under the state attorney fee dispute resolution procedure , a de novo review , by its very nature , is not a review of an arbitration proceeding itself or an arbitration award but a review of the underlying dispute , as if an arbitration proceeding never occured , thus contemplating a full adjudication , on the merits , of the paries ' claims ( see 22 NYCRR , 9 137. 0; see Sachs v. Zito 28 Misc3d 567 (NY.Sup Ct 2010)). Under the FDRP , the submission of a fee dispute to mandatory arbitration does not bar judicial de novo review unless the parties expressly waive their rights to such review in advance. (see 22 NYCRR 9 137. 2(a), ( c). ). Furher , under 22 NYCRR 9 137.2 ( c), any agreement by the de novo paries to waive their rights to review must be made " in writing in a form prescribed by the Board of Governors. " The written waiver form prescribed by the Board of Governors requires both paries to acknowledge that: they agree to be bound by the decision of the arbitrator(s) and agree to waive their rights to reject thearbitrator(s) award by commencing an action on the merits (trial novo) in a cour oflaw within 30 days after the arbitrator(s) decision has been mailed.... Attorney and Client understand that they are not required to agree to waive their right to seek a trial under Par 137 (see Borgus v. de novo Marianetti 7 Misc3d 1003(A), (NY City Ct. 2005)). Here , the Retainer Agreement contains the proper waiver language and although the relief 7511 , she implicitly is seeking a review sought by Udell is limited to the provisions under CPLR ofthe merits of the fee dispute. She , in her papers , discusses the representations allegedly made by Del Vecchio , her complaints of over biling by the firm , and even allegations of the mishandling of [* 4] de novo her case by the law firm. These issues are proper under a review, which she voluntarily waived. What remains is the grounds for vacating the judgment due to the actions of the arbitrators. CPLR 97511(b) sets forth the grounds for vacating an arbitration s award: .if the cour finds that the rights of that part were prejudiced by: (I) corrption , fraud or misconduct in procuring the award; or (ii) pariality of an arbitrator appointed as a neutral except where the award was by confession; or (iii) an arbitrator , or agency or person makng the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this aricle , uness the par applying to vacate the award continued with the arbitration with notice ofthe defect and without objection... par seeking to vacate or modify an arbitration award and a judgment entered thereon has the burden of demonstrating the existence of specified statutory grounds by clear and convincing evidence. Here , the issue as set forth by Udell , alleges that the arbitrators ' refusal to allow Blaine Udell to testify constituted misconduct which ultimately prejudiced her. The uncontroverted evidence indicates that she raised the issue during the hearing and one arbitrator inquired as to the subject of Blaine Udell' s testimony. As Udell indicated that Blaine Udell would be providing essentially the same testimony regarding attorney, Phylis Recine , the panel determined that such evidence was not essential to matter. Unless the arbitrator s determination is thus rendered totally irrational , a refusal or failure to pass upon an arguably relevant issue or piece of evidence , even if mistaken , is a matter of arbitral judgment which , being par and parcel of the arbitrator s determination , is not judicially reviewable (see Maross Const., Inc. v. Central New York Regional Transp. Authority, 66 NY2d 341 (1985)). Furer, the failure of the arbitrator to consider all issues of fact and law which a cour would have to consider in order to properly dispose of the same controversy amounts , at most , to mere error and is not judicially reviewable (see Scott v. Bridge Chrysler Plymouth, Inc. 214 AD2d 675 , (2nd Dept 1995)). Based on the evidence submitted herein , the cour finds that Vesna Udell did not present any evidence that would warant relief under CPLR ~ 7511. Accordingly, her petition is denied , Del [* 5] Vecchio s petition is granted. The arbitrators ' award is confirmed and judgment is granted to Del Vecchio against Udell Vesna in the amount of$45 , 533. 32. Settle Order. Submit Judgement on Notice. This constitutes the decision and order of this Court. ENTER DATED: May 8, 2012 HON. ARTHU M. DIAMOND ENTERED To: Attorney for Plaintiff Attorney for Respondent DELVECCHIO & RECINE, LLP. VESNA 1100 Frankin Avenue Garden City, New York 11530 10 Stubndge Lane DixHils , DELL MAY 10 2012 NAIU COUNTY COUNtY CLIRK" New York 11746 OFFill

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