Silver v Ottieri

[*1] Silver v Ottieri 2015 NY Slip Op 51205(U) Decided on August 3, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2014-650 Q C

Jonathan Silver, Respondent, August 3, 2015

against

Jerry Ottieri, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered January 14, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $13,000.

ORDERED that the judgment is affirmed, without costs.

Plaintiff, an attorney, rendered legal services to defendant in connection with a Supreme Court action brought against defendant by the prospective purchasers of defendant's residence, who had sought specific performance and other relief under a contract for the sale of defendant's residence. A retainer agreement, executed in October 2005, provided that the fee for plaintiff's legal services would be $15,000 if the Supreme Court action terminated favorably, and $7,500 if the action terminated unfavorably. It is undisputed that defendant signed the retainer agreement, that the Supreme Court action was dismissed during trial upon the defendant's motion, that June 19, 2007 was when plaintiff last rendered legal services to defendant, and that defendant had paid plaintiff the sum of $2,000.

On February 2, 2009, plaintiff commenced an action against defendant, seeking the remaining $13,000 allegedly due under the retainer agreement. In March 2010, after plaintiff's motion to discontinue that action had been granted without prejudice (Maureen A. Healy, J.), plaintiff served defendant with documents notifying him of his right to arbitrate disputes over attorney's fees pursuant to the Rules of the Chief Administrator of the Courts (22 NYCRR) part 137. Thereafter, defendant's request for fee dispute arbitration was denied by the Supreme Court in August 2010, as no attorney's services had been rendered for more than two years (see Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [6]).

In September 2010, plaintiff commenced a second action against defendant, again seeking the remaining $13,000 allegedly due under the retainer agreement. The Civil Court, in a December 6, 2010 order (Cheree A. Buggs, J.), dismissed the action without prejudice because plaintiff had failed to allege in the complaint either that he had complied with the requirements of part 137 or that he was not required to comply with such requirements (see Rules of Chief Admin of Cts [22 NYCRR] § 137.6 [b]).

On January 24, 2011, plaintiff commenced this action against defendant for the same relief. This time, the complaint alleged that defendant had been provided with notice of his right to arbitrate but that the fee dispute was not subject to the provisions of part 137 because there had [*2]been no attorney-client relationship for more than two years. Defendant moved to dismiss the complaint. In a July 12, 2011 order, the Civil Court (Leslie J. Purificacion, J.) denied defendant's motion, finding that plaintiff had properly pleaded in his complaint that part 137 did not apply because there had been no attorney's services rendered for more than two years (see Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [6]). In a decision and order dated January 14, 2013, this court affirmed the order of the Civil Court (Silver v Ottieri, App Term, 2d, 11th & 13th Jud Dists, Jan. 14, 2013, appeal No. 2011-2445 Q C).

Following a nonjury trial, at which both parties testified, the Civil Court awarded judgment in favor of plaintiff in the principal sum of $13,000, finding that defendant's contention that this action was barred due to plaintiff's noncompliance with part 137 lacked merit, because, among other things, part 137 was inapplicable "where no attorney's services have been rendered for more than two years" (Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [6]). On appeal, defendant claims that part 137 is applicable to this action since plaintiff last rendered legal services on June 19, 2007, which was within two years of the date of the commencement of the original action, on February 2, 2009, and that plaintiff was barred from commencing an action due to his failure to comply with the notice provisions of part 137.

An appellate court's resolution of an issue on a prior appeal constitutes the law of the case and is binding on the lower court, as well as on the appellate court (see J-Mar Serv. Ctr., Inc. v Mahoney, Connor & Hussey, 45 AD3d 809 [2007]; Quinn v Hillside Dev. Corp., 21 AD3d 406 [2005]). The law of the case doctrine operates to foreclose re-examination of a question previously determined by an appellate court in the same action (Matter of 24 Franklin Ave. R.E. Corp. v Heaship, 101 AD3d 1034 [2012]) "absent a showing of subsequent evidence or change of law" (Matter of Yeampierre v Gutman, 57 AD2d 898, 899 [1997]; see also Matter of 24 Franklin Ave. R.E. Corp. v Heaship, 101 AD3d 1034) or "extraordinary circumstances . . . warrant[ing] a departure from the law of the case" (Carole A. v City of New York, 169 AD2d 800, 801 [1991]; see also Matter of 24 Franklin Ave. R.E. Corp. v Heaship, 101 AD3d 1034; Quinn v Hillside Dev. Corp., 21 AD3d 406). Defendant made no such demonstration. Consequently, this court's determination on the prior appeal regarding the issue of the applicability of part 137 constitutes the law of the case.

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: August 03, 2015