Kerner & Kerner v Dunham
2007 NY Slip Op 09946 [46 AD3d 372]
December 18, 2007
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 13, 2008


Kerner and Kerner, Appellant,
v
Clarissa Dunham, as Executrix of William B. Armstrong, Deceased, et al., Respondents.

—[*1] Kerner & Kerner, New York City (Richard A. Kerner of counsel), appellant pro se.

Weisberg & Weisberg, Great Neck (Sidney A. Weisberg of counsel), for respondents.

Order, Supreme Court, New York County (Debra A. James, J.), entered October 20, 2006, which, in an action to recover attorneys' fees, granted defendants' motion to dismiss the complaint, without prejudice to institution of a new action, unanimously affirmed, without costs.

The complaint was properly dismissed for failure to allege that, as claimed by plaintiff in opposition to the motion, the dispute involves more than $50,000 and therefore is not covered by the Fee Dispute Resolution Program (22 NYCRR part 137; see 22 NYCRR 137.1 [b] [2]; 137.6 [b] [2]; Paikin v Tsirelman, 266 AD2d 136 [1999]). We deem the motion court's dismissal to be without prejudice to a new action (see CPLR 5013). We have considered plaintiff's other arguments and find them to be unavailing. Concur—Tom, J.P., Friedman, Williams, McGuire and Kavanagh, JJ.