The motion of defendants to dismiss the complaint for failure to state a cause of action is granted and the complaint is dismissed. CPLR §3211(a)(7).

The complaint alleges in substance that plaintiff is a law firm organized as a limited liability company under the State of New York, with an office in New York, that the defendants engaged plaintiff pursuant to a written engagement letter to provide legal services, and that the individual defendants guaranteed payment of the fees owed by the two CBC defendants.

Defendants move to dismiss on the ground that the complaint fails to state a cause of action because it does not allege compliance with 22NYCRR Part 137 §137.6, Fee Dispute Resolution Program, Arbitration Procedure and 22 NYCRR Part 1215, §1215.1 entitled Written Letter of Engagement.

In response plaintiff submits an affidavit of an attorney admitted to and practicing law in the State of Connecticut who purports to be "counsel to plaintiff" resident in its Connecticut office and an unsigned engagement letter" with defendant CBC Capital Ventures, Inc. The affidavit states that the retainer was signed in the attorney's presence but it does not inform as to the state in which it was signed ( the affidavit recites the offices of defendant EKN as the signing venue and the complaint [par.4] recites a Nassau county [*2]address for EKN) or why a signed copy has not been submitted. The affidavit also recites that although engaged to provide services to defendant CBC Capital Ventures, Inc., the other defendants "provided written assurances via several writings that the individual defendants would guarantee payment... ."

As this motion is made pursuant to CPLR 3211(a)(7) prior to answer, the Court must look within the four corners of the complaint, and if any cause of action is discernable therefrom the motion should fail. See, e.g., Guggenheimer v Ginzburg, 43 NY2d 268, 275 (1977). In making this determination, the factual allegations asserted in the pleading are to be accepted as true, and the plaintiff is to be accorded the benefit of every favorable inference that may be drawn therefrom. Leon v Martinez, 84 NY2d 83 (1994); Konidaris v Aeneas Capital Mgt., LP, 8 AD3d 244 (2d Dept. 2004).

A court may consider evidence outside a pleading to test if a plaintiff has a cause of action including affidavits received for the limited purpose of remedying defects. Morris v. Morris, 306 AD2d 449 (2d Dept. 2003); Davis v. CCF Capital Corp., 277 AD2d 342 (2d Dept. 2000).

An attorney who brings an action to recover a fee must allege in the complaint that the client received notice of the right to pursue arbitration and mediation and did not file a timely request therefor or that the dispute is not otherwise covered by 22NYCRR Part 137 §137.1. See §137.6(b) complaint must allege receipt of notice or that dispute is not covered by Part 137. Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C. v. Lubnitzki, 13 Misc 3d 823 (Civ. Ct. NY Cty 2006) relying in part on Wexler & Burkhart, LLP v. Grant, 12 Misc 3d 1162(A) (Sup. Ct. Nassau Cty Palmieri, J.).

Part 137 of the rules does not apply to:

(7) disputes where the attorney is admitted to practice in another jurisdiction and maintains no office in the State of New York or where no material portion of the services was rendered in New York. 22 NYCRR §137.1(b)(7).

There is no dispute that plaintiff, a New York law firm is seeking to recover a legal fee in the State of New York from persons or entities residing or having offices in this State and the complaint neither alleges compliance nor claims that the dispute is not covered by Part 137. There do not seem to be any cases that specifically address the exclusion, however, the rule is clear in mandating that non-coverage must also be pleaded thus by parity of reasoning, the cases cited authorize dismissal for failure to plead that the rule does not apply. See Williams v. Jackson, 10 Misc 3d 58 (App. Term 2d Dept. 2005).

Applying these well-established standards to the complaint in this action, it is apparent that a cause of action is not made out against the defendants.

The affidavit of the attorney in support of the complaint does not cure this deficiency because plaintiff fails to submit a retainer that has been signed by any defendant or explain the omission and fails to demonstrate any facts from which causes of action against the other [*3]defendants who supposedly committed to the fee payment may be discerned. The retainer at best would only apply to CBC Capital Ventures, Inc. It cannot be argued that the attorneys affidavit cures the pleading deficiency by supplying a claim that the rules do not apply because that allegation would be premised on the unsigned engagement letter, is unsupported by any evidentiary facts and plaintiff fails to supply any Connecticut law to support its position (which is not necessarily adopted by this Court) that an exclusion may be premised by the application of Connecticut legal principles.

This Decision is not to be deemed a finding that the fee dispute lies outside scope of the court rules but requires minimally that a New York attorney suing New York residents in New York for a fee must at least plead an exception to the New York State Fee Dispute Resolution Program and by not doing so incurs dismissal.

Because dismissal is otherwise appropriate, it is not necessary for the Court to reach the second ground for dismissal based on plaintiff's failure to obtain a written retainer agreement from those parties who are alleged to have agreed to be responsible for the fee due under the retainer. It has been held that a violation of 22NYCRR §1215.1 Written Letter of Engagement, was not intended to serve a penal or disciplinary purpose, contains no express penalty for noncompliance, is not underscored by a specific disciplinary rule, is not intended to protect clients against abusive practices and does not create a strict rule prohibiting the recovery of counsel fees for noncompliance. Seth Rubinstein P.C. v. Ganea, 41 AD3d 54 (2d Dept. 2007). Dismissal for failure to allege compliance with "Letter of Engagement Rule" id at p. 60 does not obtain.

Based on the foregoing, the action is dismissed.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: January 15, 2008

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: