Recitation, as required by CPLR 2219 [a], of the papers considered in the review of this (these) motion(s):

Papers Numbered

Def's n/m (dismiss, sj, vacate undertaking, sanctions), MM affirm, affid of service, exhs . ..1

Pltf's NS affirm in opp, exhs ... . ..2

MM reply affirm, exh ... ... . ..3

LYNN R. KOTLER, J.:

Upon the foregoing papers, the decision and order of the court is as follows:

This small claims action arises from a dispute between two lawyers. Claimant seeks $5,000 for the work she performed on non-party Jeannine Nemandoust's personal injury action which defendant took over and ultimately settled for $33,000.

Defendant now moves for a plethora of relief by Notice of Motion. She seeks an order: [1] releasing the undertaking she posted with the Clerk of Court; [2] dismissing this action pursuant to CPLR § 3211 (a) (7); [3] granting her summary judgment pursuant to CPLR § 3212; [4] awarding her $5,250 for her costs and disbursements and/or as sanctions against claimant. Claimant opposes the motion.

The motion is decided as follows.

The relevant facts are largely undisputed. Ms. Nemandoust explains in an affidavit that that she was involved in an accident on May 2, 2006 at a store called Avenue, located in Nassau County, New York. She states that she originally obtained Sedaghati and Associates ("S & A") to represent her in this matter and that claimant was the attorney at S & A handling her case. According to Ms. Nemandoust, she tried calling claimant numerous times to find out about the status of her case, but claimant "never accepted any of [her] phone calls and [she] would always be forced to leave a message [for] her." Ms. Nemandoust maintains that claimant "refused to meet [her]." Evenutually, claimant told Ms. Nemandoust that she "did not have a good case and that [her] case was very hard and she could not get favorable results for [Ms. Nemandoust]." Claimant allegedly "refused" to commence an action on behalf of Ms. Nemandoust. Therefore, Ms. Nemandoust "fired said firm for cause."

On May 8, 2007, Ms. Nemandoust obtained the Law Office of Milene Mansouri by signing a retainer agreement and consent to change attorney. Defendant states in her affirmation that on May 9, 2007, she personally faxed over the consent to change attorney to S & A and a "Cease and Desist letter to stop any and all work" to claimant's attention and "following that I personally spoke with [claimant] advising that she has been substituted and no longer represented Ms. Nemandoust." On June 4, 2007, defendant sent claimant a letter and a check for $119.57 for claimant's expenses and [*2]disbursements. Defendant wrote: "as discussed you have not put the case in suit and there have been no offers on this case. Nevertheless, I will mark my case with your lien and we shall work out an amicable resolution at the conclusion of the matter." Defendant again requested a copy of the file.

On June 7, 2007, Ms. Nemandoust claims that Ms. Sedaghati called her, "advising [her] that the insurance carrier had called her to settle the matter." Defendant maintains that claimant directly contacted the insurance carrier, Zurich, and attempted to settle the case knowing full and well that she had been fired and did not have the authority to settle Ms. Nemandoust's claim. Thereafter, at Ms. Nemandoust's request, defendant filed a grievance with the disciplinary committee, the outcome of which has not been provided to the Court.

On June 15, 2007, Zurich received a letter entitled "Notice of Lien for Attorney's Fees". The letter was signed by claimant, only, stating that her firm had been substituted by defendant's office. The letter did not refer to the date of substitution nor was it signed by either Ms. Nemandoust or John Gholian (Ms. Nemandoust's husband with a loss of consortium claim).

On or about September 12, 2007, defendant commenced an action in Supreme Court, Nassau County, entitled "Jeanine Nemandoust and John Gholian v. Avenue and United Retail Incorporated" bearing index number 16191/07 (the "Nemandoust Action"). Defendant claims that after spending 250-300 hours on the Nemandoust Action, she settled the matter on March 17, 2009 for $33,000. In her affirmation, defendant details the work that she did, inter alia, drafting and serving the summons and complaint, serving discovery demands, conducting depositions for both party and non-party witnesses and preparing Ms. Nemandoust for her own deposition, and opposing defendant's motion for summary judgment. Defendant's fee was approximately $8,000.

The procedural history of this small claims case which then ensued is incredibly protracted. It was originally filed on July 27, 2010, wherein claimant styled her claim as: "nonpayment for services rendered on 2-25-2009." After denying defendant's application for an adjournment because she was then presently engaged in a jury trial in Supreme Court, Queens County, the Hon. Kibbie Payne held an inquest on October 26, 2010 and awarded claimant a judgment of $5,000. Defendant filed a motion to vacate the judgment, which was denied. Meanwhile, claimant attempted to collect on the judgment. Defendant had filed an appeal to the Appellate Term, but in order to stay execution of the judgment, defendant made an Order to Show Cause seeking leave to deposit the sum of $5,000 as an undertaking with the Court. The Hon. Margaret Chan granted that OSC on March 10, 2011.

On November 20, 2012, the Appellate Term, First Department, reversed Judge Payne's denial of defendant's motion to vacate the default judgment, vacated the judgment and remanded the matter for further proceedings. This motion followed.

Discussion

In opposition to defendant's motion, claimant argues that motion practice in a small claims action is generally discouraged and should not be entertained by this Court. Motion practice is generally discouraged in the small claims part, mostly because the part is designed to speedily resolve small claims actions and the litigants are lay persons who lack knowledge of the technicalities associated with motion practice. Here, this action has languished and is ripe for summary adjudication. Moreover, the litigants are both lawyers. Finally, accelerated judgment can be granted in a small claims action (see i.e. Senti v. Ace Auto Body & Towing, Ltd., NYLJ, Aug 11, 1998, at 23, col 4 [App Term 2d Dept]; see also Spiegel v. Continental Airlines, 11 Misc 3d 145(A) [App Term 9th and 10th Jud Dist 2006]). Therefore the Court will consider the motion pursuant to [*3]CPLR § 3211 and § 3212.

In determining whether a complaint is sufficient so as to withstand a motion to dismiss pursuant to CPLR § 3211 "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law" (Guggenheimer v. Ginzburg, 43 NY2d 268 [1977]). The facts as alleged must be accepted by the court as true, for purposes of such a motion, and are to be accorded every favorable inference (Morone v. Morone, 50 NY2d 481 [1980]; Beattie v. Brown & Wood, 243 AD2d 395 [1st Dept 1997]). Where the motion is premised upon the existence of documentary evidence, such evidence must definitively dispose of plaintiff's claims (Bronxville Knolls Inc. v. Webster Town Center Partnership, 221 AD2d 248 [1st Dept 1995]).

Claimant is seeking a portion of the contingent fee obtained by defendant in the Nemandoust Action. There is no dispute that claimant neither appeared as attorney of record in an action or proceeding (Judiciary Law § 475). Nor did claimant file a proper notice of lien pursuant to Judiciary Law § 475—a, which provides in pertinent part:

If prior to the commencement of an action an attorney serves a notice of lien upon the person or persons against whom his or her client has or may have a claim or cause of action, the attorney has a lien upon the claim or cause of action from the time such notice is given The notice shall (3) state that the relationship of attorney and client has been established, the nature of the claim or cause of action, and that the attorney claims a lien on such claim or cause of action; (4) be signed by the client, or by a person on his or her behalf whose relationship is shown, and which signature shall also be witnessed by a disinterested person whose address shall also be given

Since the notice of lien sent to Zurich was not signed by Ms. Nemandoust or Mr. Gholian, claimant was not entitled to a charging lien under the Judiciary law (see i.e. Jaghab & Jaghab v. Marshall, 256 AD2d 342 [2d Dept 1998]). The absence of a lien is not dispositive of claimant's claim for recovery of the reasonable value of her legal services rendered; rather, such a claim sounds in quantum meruit (see e.g. Michael B. Miller, P.C. v. Joel J. Turney, LLC, supra, citing Ling Cheng v. Modansky Leasing Co., 73 NY2d 454, 458, 539 N.E.2d 570, 541 N.Y.S.2d 742). The elements of a cause of action for quantum meruit are: (1) performance of services in good faith; (2) acceptance of services by the person to whom they are rendered; (3) expectation of compensation therefor; and (4) the reasonable value of the services rendered (Evans-Freke v. Showcase Contracting Corp., 85 AD3d 961 [2d Dept 2011]).

Here, it is clear that claimant has met her relatively light burden sufficient to survive the motion to dismiss. The Court will now turn to the motion for summary judgment.

A movant seeking summary judgment in its favor must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case " (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidentiary proof tendered, however, must be in admissible form (Friends of Animals v. Assoc. Fur Manufacturers, 46 NY2d 1065 [1979]). Once met, this burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). [*4]

Defendant argues in support of her motion that claimant did "absolutely nothing on the file." Defendant details all the work she performed, from filing the action to the ultimate settlement. Defendant has also provided an affirmation from her adversary in the Nemandoust Action, Patricia Rech, Esq., which supports all of the factual assertions made by the defendant as to the work she performed on the case.

Claimant argues that summary judgment should be denied because she has not annexed a copy of her answer and that defendant's motion asks for relief which has already been rejected by the Hon. Margaret Chan. Claimant's argument that the failure to annex a copy of the answer to the motion is a fatal defect is rejected because ordinarily there is no answer in a small claims case (see Siegel's New York Practice § 582). As for whether the same relief has already been rejected, i.e. law of the case, Judge Chan did not deny summary judgment on the merits; rather Judge Chan indicated in her decision/order that she did not consider this request for relief as it was not germane to the Order to Show Cause then sub judice.

Claimant has also cut and pasted into her affirmation what the Court characterizes as a "ledger". This ledger purports to detail the legal services performed by claimant on Ms. Nemadoust's case. The ledger was not prepared contemporaneous with the legal services allegedly performed by claimant; rather, it was prepared for purposes of this litigation, only. It outlines numerous telephone calls and letters sent in order to investigate Ms. Nemandoust's claim. Some of the work allegedly performed took place after claimant was directed to cease all work on the file, such as sending numerous lien letters, and speaking to Zurich to "reconfirm" the lien four times. Claimant even includes the "work" she performed by prosecuting the instant small claims action. Claimant did not prepare a summons and complaint. Nor did claimant ever turn the file over to defendant, even though defendant sent a check to claimant to cover her costs and disbursements. Claimant indicates that she "tr[ied] to schedule mediation" but offers no proof or results thereof. Claimant indicates that she performed legal research but does not substantiate this claim. Claimant indicates that she wrote numerous letters and sent Ms. Nemandoust multiple HIPPA authorizations but does not provide proof of this either. Defendant is seeking summary judgment and this is claimant's opportunity to lay her proofs bare in order to raise a triable issue of fact.

The claimant is requesting that this Court award her approximately five-eighths of the attorney's fee received by the defendant. Therefore, claimant is seeking more than half of the fee defendant obtained for performing minimal and administrative work. Claimant has not come forward with sufficient proof of the work that she did to warrant any award under a theory of quantum meriut. Claimant's conclusory and unsubstantiated claims made in her affirmation are insufficient to defeat the motion for summary judgment. She has not shown how any of the work she did advanced Ms. Nemandoust's case.

Defendant, however, is not entitled to attorney's fees or sanctions against the claimant. First, she has not filed a counterclaim. In any event, there is no legal basis for either claim. Attorney's fees are not recoverable absent an express agreement, statute or court rule (Hooper Assocs., Ltd. v. AGS Computers, Inc., 74 NY2d 487, 491 [1989]) and costs and sanctions for frivolous conduct in civil litigation are not available "in proceedings in a small claims part of any court" (22 NYCRR 130—1.1[a]; see also Spiegel v. Continental Airlines, supra). [*5]

Accordingly, defendant's motion is granted as follows: defendant is entitled to summary judgment dismissing this action and her undertaking of $5,000 is hereby released.

Conclusion

In accordance with the foregoing decision,

It is hereby

Ordered that defendant's motion is granted to the following extent: defendant is entitled to summary judgment dismissing this action and defendant's undertaking of $5,000 is hereby released; and it is further

Ordered that the motion is otherwise denied; and it further

Ordered that this action is dismissed; and it is further

Ordered that the Clerk of Court is directed to release to defendant her undertaking posted pursuant to Judge Chan's decision/order dated March 10, 2011, in the amount of $5,000.

Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied and this constitutes the decision and order of the Court.

Dated: August 7, 2013So Ordered:

New York, New York

_____________________

Hon. Lynn R. Kotler, J.C.C.