In this proceeding which seeks to recover attorneys fees, defendant moves for summary judgment and dismissal of the complaint, and also seeks leave to file an amended answer with counterclaim. Plaintiff opposes defendant's motion for summary judgment and dismissal of the complaint.

Plaintiffs' complaint seeks recovery of $51,264.47 for legal fees for services performed between approximately October 11, 2006 and May 22, 2007.

Defendant asserts that plaintiff failed to obtain a letter of engagement or written retainer agreement as required by 22 NYCRR 1215.1. Defendant contends that plaintiff is not permitted to recover legal fees in the absence of a letter of engagement or written retainer agreement. Defendant argues that because the complaint does not reference compliance with 22 N.YCRR 1215.1, defendant is entitled to dismissal of the complaint. Alternatively, defendant argues that in the absence of a letter of engagement or written retainer agreement defendant is entitled to summary judgment.

Defendant affirms in an affidavit submitted in support of the motion that he did not enter into a written retainer agreement or letter of engagement with plaintiff. He affirms that he had a verbal agreement with plaintiff that he would pay a flat fee of $15,000.00 for legal fees in certain criminal proceedings. He also requests permission to serve an amended verified answer with counterclaim.

In opposition to the motion, plaintiff contends that a letter of engagement was in fact provided to defendant. A copy of a letter of engagement dated October 23, 2006 is provided. Attorney Stephen A. Pechenik affirms that the contents of the letter were discussed with defendant, including the amount of legal fees. He acknowledges that defendant did not return a signed letter of engagement, but affirms that he also did not object to any terms in the letter. Mr. Pechenik disputes defendant's claim that there was ever an agreement to legal fees at $15,000.00, although he acknowledges that defendant requested this.

In reply, defendant argues that 22 NYCRR 1215.1 not only requires that a written letter of engagement be provided to a client, but also that it be signed by the client in order to be effective and in order to comply with the regulation.

Effective March 4, 2002, state regulation requires an attorney to either provide a written letter of engagement to a client, or enter into a signed written retainer agreement, before or within a reasonable time after commencing the representation (22 NYCRR 1215.1). A letter of engagement is required to address the following matters:

(1) explanation of the scope of the legal services to be provided;

(2) explanation of attorneys fees to be charged, expenses and billing practices; and [*2]

(3) where applicable, shall provide that the client may have a right to arbitrate fee disputes under Part 137 of this Title.

The Court has considered the wording of the regulation at issue and does not find that there is a requirement that a client sign a written letter of engagement (22 NYCRR 1215.1). The plain wording of the regulation supports this conclusion and also the fact that the regulation provides in the alternative that an attorney may enter into a signed written retainer agreement with the client in order to comply with the regulation. The Court declines to dismiss the complaint based upon plaintiff's failure to allege compliance with 22 NYCRR 1215.1. The Court does not find that such a statement is required and also notes that the complaint contains statements that are sufficiently particular to give defendant notice of the causes of action (CPLR 3013). Based upon the proof submitted in opposition to the motion, the Court also finds that there are questions of fact precluding summary judgment in light of defendant's assertion that a letter of engagement did not exist, and plaintiff's presentation of a letter of engagement that is affirmed to have been sent to defendant.

It is noted that plaintiff does not oppose the portion of defendant's motion seeks leave to serve an amended answer and counterclaim. Defendant may serve the amended answer and counterclaim within thirty (30) days of the date of this decision and order.

Accordingly, it is

ORDERED, that defendant's motion is denied in part and granted in part, as set forth above; and it is further

ORDERED, that defendant shall serve the amended answer and counterclaim within thirty (30) days of the date of this Decision and Order.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:August, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice