Calabro & Assoc., P.C. v Katz

[*1] Calabro & Assoc., P.C. v Katz 2010 NY Slip Op 50192(U) [26 Misc 3d 137(A)] Decided on February 9, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 9, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld JJ
570289/09.

Calabro & Associates, P.C., Plaintiff-Appellant,

against

Steve Katz, Defendant-Respondent.

Plaintiff appeals from that portion of an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), entered December 10, 2008, which denied its motion for summary judgment dismissing defendant's counterclaims.

Per Curiam.

Order (Arlene P. Bluth, J.), entered December 10, 2008, insofar as appealed from, reversed, without costs, plaintiff's motion granted, defendant's counterclaims for legal malpractice and sanctions are dismissed, and counterclaims for alleged over-billing are severed.

Plaintiff, a law firm, commenced this action to recover legal fees allegedly owed for work it performed on defendant's behalf. Defendant answered the complaint, asserting an affirmative defense based on plaintiff's failure to notify defendant of his right to arbitrate the attorneys' fees dispute (see 22 NYCRR 137.0, et seq.) and several counterclaims. Civil Court granted that branch of plaintiff's motion which was to discontinue the action without prejudice to permit the parties to arbitrate the fee dispute, but denied that branch of the motion which was for summary judgment dismissing defendant's counterclaims.

As defendant conceded in his opposition papers below, his counterclaims alleging that plaintiff over-billed him are properly addressed in the attorneys' fees arbitration proceeding, since the arbitrators must determine the reasonableness of the fees based on "all relevant facts and circumstances" (22 NYCRR 137.0) and those counterclaims relate to a potential "adjustment of the fee" (22 NYCRR 137.1[b][4]). The counterclaim for legal malpractice should have been dismissed. Plaintiff made a prima facie showing that it was not negligent and that any alleged negligence did not proximately cause defendant's claimed damages. In opposition, defendant failed to raise a triable issue on either score. On the issue of plaintiff's alleged negligence, defendant did not submit any competent evidence showing that plaintiff failed to exercise the degree of care commonly exercised by a member of the legal profession (see Orchard Motorcycle Distrib., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292 [2008]; Schadoff v Russ, 278 AD2d 222 [2000]). Moreover, defendant failed to show that "but for" plaintiff's alleged negligence defendant would have obtained a more favorable result in the underlying landlord-tenant proceeding or would have successfully sold his business to a third-p[*2]arty (see AmBase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]; Davis v Klein, 88 NY2d 1008 [1996]).

The counterclaim for sanctions under 22 NYCRR 130-1.1 should have been dismissed, since no independent cause of action for such sanctions exists (see Siegel, NY Practice § 414A [4th ed]; see also 22 NYCRR 130-1.1[d]). In any event, construed as a motion for rule 130-1.1 sanctions, such a motion should have been denied because defendant failed to establish that plaintiff engaged in frivolous conduct (see 22 NYCRR 130-1.1[c]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: February 09, 2010