Appeal from a judgment of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered August 22, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is modified by providing that the dismissal of the complaint is without prejudice; as so modified, the judgment is affirmed, without costs.

Plaintiff, an attorney, commenced this action, based on an account stated, to recover legal fees from defendants, former clients who were represented by him in prior judicial proceedings. Plaintiff's complaint contained no allegations with respect to his compliance with Rules of the Chief Administrator of the Courts (22 NYCRR) part 137, which requires, among other things, that an attorney who institutes an action to recover a fee allege in the complaint that the client received notice of the right to arbitrate a fee dispute and did not file a timely request for arbitration, or that the fee dispute is not governed by part 137 (see Rules of Chief Admin of Cts [22 NYCRR] § 137.6 [b]; see generally Rules of Chief Admin of Cts [22 NYCRR] § 137.2 [a]). After a nonjury trial, the City Court, finding that there had been a fee dispute between the parties and that the complaint in this case did not contain the necessary allegations, dismissed the complaint. [*2]

Where an attorney fails to comply with the pleading requirements set forth in the Rules of the Chief Administrator of the Courts (22 NYCRR) part 137, the appropriate remedy will generally be the dismissal of the complaint without prejudice to the commencement of a new action (see Kerner & Kerner v Dunham, 46 AD3d 372 [2007]; Herrick v Lyon, 7 AD3d 571 [2004]; Paikin v Tsirelman, 266 AD2d 136 [1999]). Accordingly, the judgment is modified by providing that the dismissal of the complaint is without prejudice.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: May 13, 2013