This action arises out of plaintiff's prior retention of the defendant law firm to represent him in a custodial proceeding. Upon termination of the attorney-client relationship a dispute arose between the parties over defendant's legal fees. The parties agreed to submit the fee dispute to arbitration under the New York Fee Dispute Resolution Program promulgated under the Rules of the Chief Administrator part 137. Subsequent to the issuance of an arbitration award the plaintiff, acting pro se, timely commenced this action for a de novo review of the fee dispute (see 22 NYCRR §137.8[a]). The defendant's answer asserted eight (8) affirmative defenses and interposed a counterclaim to recover its legal fees. A bench trial was held on the complaint and counterclaim on March 22, 2011. The court reserved decision after the trial.

The complaint requests the court to vacate the arbitration award and/or to declare that plaintiff is not liable for the defendant's legal fees. First, the commencement of an action for de novo review renders the arbitration award as nonfinal and nonbinding (Landa v. Dratch, 45 AD3d 646, 647). Moreover, the arbitration award is inadmissible as evidence in this action (22 NYCRR §137.8[c]). Simply stated, the very act of commencing this action effectively vacated the arbitration award (Walsh v. Duffy, 12 Misc 3d 111, 112). Thus, the relief requested, i.e., to vacate the arbitration award, is moot. Second, at trial the defendant claimed that the plaintiff had waived his right to a de novo review of the fee dispute. Waiver of de novo review was not raised as an affirmative defense in the answer. Nevertheless, the court finds that the written waiver submitted in support of this defense was unenforceable as it was only signed by the plaintiff and it was undated (see 22 NYCRR §137.2[c]). As for plaintiff's alternative request to declare

that plaintiff is not liable for the defendant's legal fees, this court lacks subject matter jurisdiction to grant any declaratory relief (UDCA Art. 2; Tray v. Thaler & Gertler, LLP, 17 Misc 3d 617, 621; see Pruzan v. Levine, 18 Misc 3d 70, 72). Although the defendant did not specifically raise this defense in its answer, lack of subject matter jurisdiction is a non-waivable defense that can be raised at any time (CPLR §3211(a)(2) and (e)). Hence, the court must dismiss the complaint for lack of subject matter jurisdiction.

[*2]However, the court must now consider the defendant's counterclaim to recover its legal fees. The imposition of the counterclaim seeking monetary damages vests the court with subject matter jurisdiction to determine the merits of the fee dispute (see UDCA §208). Based upon the credible testimony and evidence adduced at the trial the court finds that the defendant proved, by a fair preponderance of the evidence, its counterclaim for legal fees. The court finds that the defendant sufficiently proved the reasonableness of the fees charged to the plaintiff by means of documentation of the work performed and the billing history (22 NYCRR §137.7(d)). The defendant sued for the sum of $13,690.03 for legal fees. The defendant rendered legal services to the plaintiff in a custodial proceeding in the Nassau County Family Court. The plaintiff executed a written retainer agreement with the defendant on or about April 22, 2009. The retainer agreement enumerates the defendant's hourly billing rates, time charges and other billable expenses and disbursements. The court finds that the defendant performed legal services pursuant to the terms of the retainer agreement and properly billed the plaintiff for such services. The billing history reflects partial payments on the account by the plaintiff. The court finds that the plaintiff failed to dispute the actual work performed or the accuracy of the billing. The plaintiff did not establish that the defendant materially breached the retainer agreement. The plaintiff's objection to payment was predicated on the legal strategy employed by the defendant. Such objection does not alleviate the plaintiff's liability for payment for defendant's legal services.

Accordingly, defendant is granted judgment dismissing the complaint. The defendant is granted judgment against the plaintiff on the counterclaim in the sum of $13,690.13 together with interest thereon from January 5, 2011 plus costs and disbursements. Submit judgment to the clerk of the court.

Date: April 1, 2011

J.D.C.