Maddox v Stein

[*1] Maddox v Stein 2014 NY Slip Op 50057(U) Decided on January 10, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 10, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaSALLE, J.P., NICOLAI and IANNACCI, JJ
2012-2517 S C.

Gordon Maddox, Appellant,

against

Marc Stein, Respondent.

Appeal from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered October 4, 2011. The judgment, entered upon an order granting defendant's oral application to dismiss, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In January 2011, the parties entered into a retainer agreement pursuant to which defendant's law firm was retained to represent plaintiff in a child support matter. The agreement provided that, in the event of a fee dispute, the dispute would be resolved through arbitration under the Fee Dispute Resolution Program (Rules of Chief Admin of Cts [22 NYCRR] § 137.0 et seq.). The agreement further provided that both parties waived their right to a trial de novo. After the arbitration proceeding had been conducted and the arbitrator had rendered an arbitration award, plaintiff commenced this small claims action in the District Court seeking, in effect, de novo review of the fee dispute. Upon defendant's oral application, the District Court dismissed the action on the ground that plaintiff, in the retainer agreement, had waived his right to de novo review. On October 4, 2011, a judgment dismissing the action was entered, from which plaintiff appeals. We affirm.

In general, the submission of an attorney-client fee dispute to arbitration under the Fee Dispute Resolution Program does not bar a party from seeking judicial de novo review unless the parties have expressly waived the right to such review. If the parties "consent in advance to arbitration . . . that is final and binding . . . and not subject to de novo review" (Rules of Chief Admin of Cts [22 NYCRR] § 137.2 [c]), such waiver must be made "in writing in a form prescribed by the Board of Governors" (id.). Section 6 (B) (1) and (2) of the Standards and Guidelines of the Board of Governors (Unified Court System, Attorney-Client Fee Dispute Resolution Program, available at http://www.courts.state.ny.us/admin/feedispute/pdfs/Standards.pdf) requires the client's consent to be "knowing and informed," i.e., the retainer agreement or other writing must specify that "the client has read the official written instructions and procedures for Part 137, and the Board approved written instructions and procedures for the local program designated to hear fee disputes between the attorney and client, and that the client consents to resolve fee disputes under Part 137" and must further state that "the client understands that he or she is waiving the right to reject an arbitration award and subsequently commence a trial de novo in court."

Since the retainer agreement signed by plaintiff contained the express waiver language set [*2]forth in the Standards and Guidelines of the Board of Governors, as required by the Rules of the Chief Administrator of the Courts (22 NYCRR) § 137.2 (c), plaintiff's waiver must be deemed to have been "knowing and informed." Consequently, plaintiff did not retain his right to seek judicial de novo review of this fee dispute.

Accordingly, the judgment dismissing the action is affirmed.

LaSalle, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 10, 2014