[*1]
O'Sullivan v Ward
2014 NY Slip Op 51649(U) [45 Misc 3d 132(A)]
Decided on November 21, 2014
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 21, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ.
570428/14

Donald O'Sullivan, Plaintiff-Appellant,

against

Beverly Ward, Defendant-Respondent.


Plaintiff appeals from a judgment of the Civil Court of the City of New York, New York County (Frank P. Nervo, J.), entered September 30, 2013, after a nonjury trial, in favor of defendant dismissing the complaint and awarding defendant a recovery of $13,847.20 on her counterclaim.

Per Curiam.

Judgment (Frank P. Nervo, J.), entered September 30, 2013, modified, to vacate the award to defendant and dismiss her counterclaim; as modified, judgment affirmed, without costs.

The evidence, fairly interpreted, supports the trial court's express finding that the plaintiff attorney failed to substantially comply with the Matrimonial Rules (see 22 NYCRR Part 1400) requiring the timely filing of the retainer agreement and periodic billing statements to the client (22 NYCRR 1400.3). Thus, the court properly dismissed plaintiff's main action seeking the recovery of unpaid fees from defendant, his former client (see Hovanec v Hovanec, 79 AD3d 816, 817 [2010]; Grald v Grald, 33 AD3d 922 [2006]).


A different result obtains, however, with respect to defendant's counterclaim seeking recoupment of moneys previously paid to plaintiff. The plaintiff's entitlement to those fees hinged not on his substantial compliance with 22 NYCRR 1400.3, but instead on whether those fees were properly earned (see Law Off. of Sheldon Eisenberger v Blisko, 106 AD3d 650 [2013]; Mulcahy v Mulcahy, 285 AD2d 587 [2001]). Based on the undisputed trial evidence elicited below, establishing, inter alia, that plaintiff, attended no fewer than six court conferences, engaged in motion practice, and routinely consulted with defendant and at least two experts, a refund of the legal fees and costs previously paid by defendant was unwarranted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur


Decision Date: November 21, 2014