Richard M. Gordon & Assoc., P.C. v Rascio

[*1] Richard M. Gordon & Assoc., P.C. v Rascio 2006 NY Slip Op 51055(U) [12 Misc 3d 131(A)] Decided on June 5, 2006 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1454 S C.

Richard M. Gordon & Associates, P.C., Respondent,

against

Christine Rascio, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Steven Hackeling, J.), dated August 9, 2005. The order denied defendant's motion for summary judgment.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

Plaintiff commenced the instant action to recover unpaid legal fees in connection with its legal representation of defendant in a matrimonial dispute. Defendant moved for summary judgment dismissing the complaint on the ground that she never executed a written retainer agreement and, accordingly, plaintiff was precluded from recovering legal fees.

22 NYCRR 1400.3 requires, inter alia, that retainer agreements in domestic relations matters be in writing and executed by both the client and attorney. Generally, when an attorney fails to comply with 22 NYCRR 1400.3, the attorney is precluded from recovering fees from his client (see Wagman v Wagman, 8 AD3d 263 [2004]; Mulcahy v Mulcahy, 285 AD2d 587 [2001]; Kayden v Kayden, 278 AD2d 202 [2000]; Potruch v Berson, 261 AD2d 494 [1999]). After reviewing defendant's moving papers and the exhibits annexed thereto, including the copy of plaintiff's response to defendant's demand for a bill of particulars which conceded that there was no executed written retainer agreement, it is clear that defendant made out a prima facie case entitling her to summary judgment dismissing the complaint. The burden then shifted to plaintiff to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 210, 324 [1986]).

In opposition to defendants' motion for summary judgment, Richard M. Gordon, Esq., a [*2]principal in the plaintiff law firm, submitted an affirmation, to which defendant's attorney objected in the reply papers. The submission of an affirmation instead of an affidavit from a principal in a law firm which is a party to the action is improper (see CPLR 2106; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; see also Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 [1981]; Pisacreta v Minniti, 265 AD2d 540 [1999]) and is insufficient to raise a question of fact (see Slavenburg Corp. v Opus Apparel, 53 NY2d 799, supra; Pisacreta v Minniti, 265 AD2d 540, supra). Consequently, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 5, 2006