Plaintiff brings this action to collect attorney's fees in the amount of $6,093.50 from the defendants. Plaintiff represented the defendants in a civil action against a broker and a Real Estate developer, pursuant to a retainer agreement dated June 28, 2005( See Plaintiff's 1 in evidence).Defendants were billed for the time spent by plaintiff in the representation of this matter ( see Plaintiff's 2 in evidence) by invoices dated from July 31, 2005 through November 30, 2006. Since Defendants account had a past due balance of over 120 days in the amount of $6,093.50 plaintiff sent defendants three letters informing them of the past due amounts and requesting payment( Plaintiff's 3 in evidence). The letters were dated November 13, 2006 through January 15, 2007. On June 18, 2007 Plaintiff mailed defendants a "NOTICE OF CLIENT'S RIGHT TO ARBITRATE A DISPUTE OVER ATTORNEY'S FEES" advising defendants that:

1-there was an amount of $6,093.50 due and owing for the provision of legal services.

2-if they dispute the amount they have a right to elect to resolve the dispute by arbitration under part 137 of the rules of the chief administrator of the courts;

3-to do so they must file the attached request for fee arbitration within 30 days from the receipt of this notice and instructions;

4- if they do not file a request for fee arbitration within 30 days then they waive this [*2]right and their attorney will be free to bring a lawsuit.

This Notice, presumably with instructions and application, was mailed by First Class mail. ( see Plaintiff's 5 in evidence, Notice with Affidavit of Mailing).

After mailing this notice on August 2, 2007 plaintiff commenced a lawsuit in Civil Court to collect the amount owed as attorney's fees.

At trial defendants raised two defenses:

1- That the retainer was supposed to be for a set fee not exceeding $5,000. This defense is controverted by the retainer agreement which is clear on its terms. ( See Plaintiff's 1). Defendants were to pay plaintiff on an hourly basis for legal services rendered, and there was no set fee stated in the retainer agreement.

2- Defendant next raises as a defense the deficiency of the content and the manner of service of the Notice to Arbitrate a Fee dispute pursuant to part 137 of the Rules of the Chief Administrator of the Courts. This defense has merit, the motion to dismiss on this ground will be granted without prejudice.

Where an attorney and client cannot agree as to the amount of the attorney's fees, the attorney is required to provide the client with 30 days written notice of the client's right to elect to resolve the dispute by arbitration ( See 22 NYCRR 137.6; Herrick v. Lyon, 7 AD3d 571, 777 NYS2d 141 [2nd. Dept. 2004]; Lorin v. 501 Second Street LLC., 2 Misc 3d 646, 769 NYS2d 361 [Civ. Ct. Kings Co. 2003]; Calendar v. Edwards, 13 Misc 3d 1086, 822 NYS2d 422 [Civ. Ct. Queens Co., 2006]). Section 137.6(a)(1) states in pertinent part.... "the attorney shall forward a written notice to the client, entitled notice of client's right to arbitrate, by CERTIFIED MAIL OR BY PERSONAL SERVICE...." ( See 22 NYCRR§137.6 (a)(1)).

"If the attorney forwards to the client by CERTIFIED MAIL OR BY PERSONAL SERVICE a notice of the client's right to arbitrate, and the client does not file a request for arbitration within 30 days after the notice was received or served, the attorney may commence an action in a court of competent jurisdiction to recover the fee and the client no longer will have the right to request arbitration with respect to the fee dispute at issue." [See 22 NYCRR § 137.6(b)].

Although this court finds that the attorney forwarded the required notice to the client, it finds that this notice was not served in accordance with the statute which [*3]makes it mandatory ( SHALL) that the notice be served by Certified mail or Personal service. The notice herein was served by First Class mail and is therefore deficient.

An attorney's failure to notify the client requires dismissal of the action, even a cause of action for an account stated ( Borah, Goldstein, Altschuler, Schwartz & Nahins, PC v. Lubnitzki, 13 Misc 3d 823, 822 NYS2d 425 [Civ. Ct. NY 2006]).

Failure to notify in accordance with the statute divests this court of subject matter jurisdiction and leaves it with no other recourse but to dismiss this case( See Lorin v. 501 Second Street LLC. 2 Misc 3d 646, 769 NYS2d 361, Supra).

Accordingly, for the foregoing stated reasons the complaint herein is dismissed without prejudice. Plaintiff is to serve the necessary notice pursuant to Rule 137.6 in accordance with the statute.

This constitutes the decision and judgment of this court.

Dated: May 14, 2008

________________________

Manuel J. Mendez

Judge Civil Court