The following e-filed documents, listed by NYSCEF document number (Motion 001) 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 were read on this motion to DISMISS.

This is the second action brought by this plaintiff against these defendants seeking to collect allegedly owed and unpaid attorney fees. The prior action was dismissed by Justice John J. Kelley of this court, following a traverse hearing, for failure to serve defendants properly. Defendants now move to dismiss plaintiff's second action on several grounds under CPLR 3211. Because plaintiff did not properly allege proper service and receipt of plaintiff's Part 137 right to arbitrate the parties' fee dispute, the action must be dismissed without prejudice. Plaintiff's cross-motion is denied as academic.

Plaintiff is a law firm. It previously represented defendants in litigation. Following that litigation, a dispute arose over whether defendants owed plaintiff additional sums in attorney fees. In March 2017, plaintiff attempted to serve defendants by certified mail with notice of their right to elect to arbitrate (rather than litigate) this dispute under 22 NYCRR Part 137. That mailing was later returned as undeliverable.

In June 2017, plaintiff brought an action to collect unpaid attorney fees in this court. (See French & Casey LLP v Design Quest NY, Ltd., Index No. 653112/2017 [Sup Ct, NY County].) In the 2017 action, defendants challenged, among other things, the validity of service on them of the summons and complaint. This court (Kelley, J.) held a traverse hearing in April 2018, and [*2]concluded at the close of the hearing that plaintiff had not established that it properly served the complaint on defendants and that the action should be dismissed without prejudice. (See NYSCEF No. 34 at 47-48.) In June 2018, the court issued an order dismissing the action without prejudice for lack of proper service based on his conclusions at the traverse hearing. (See NYSCEF No. 15.)

In April 2018—after the traverse hearing but before entry of the dismissal order—plaintiff appears to have prepared new Part 137 right-to-arbitrate notices for defendants. (See NYSCEF No. 24.) Those notices carried the index number of the 2017 action, and apparently were intended to be served by certified mail return receipt requested. (See id. at 2, 10, 18.) The affidavits of service of plaintiff's process server indicate that in June 2018, he instead hand-delivered a copy of the Part 137 notice for defendant Design Quest to defendant Richard Rubens, that he left a copy of the Part 137 notice for defendant Barbara Rubens with Richard Rubens, and that he sent a follow-up mailing of the Part 137 notice to Barbara Rubens. The affidavits of service do not reflect that the process server gave Richard Rubens a copy of his own Part 137 notice. (See NYSCEF Nos. 25, 37.)

In August 2018, plaintiff brought the present action. Plaintiff's complaint alleged that it was entitled to bring the action consistent with Part 137 because "on March 21, 2017, Plaintiff Sent to Defendants by Certified Mail the Notice of Client's Right to Arbitrate, the form Client Request for Fee Arbitration, and Standard Written Instructions and Procedures," and "[o]ver thirty (30) days have elapsed since that mailing and Defendants have not requested arbitration of the fee dispute herein." (NYSCEF No. 1 at 2 ¶ 6.)

Defendants now move under CPLR 3211 to dismiss on several grounds, including that this action is subject to dismissal under CPLR 3211 (a) (7) for failure to satisfy the requirements of 22 NYCRR Part 137. Plaintiff cross-moves for leave to file its affidavits of service of the summons and complaint nunc pro tunc. Defendants' motion to dismiss is granted. Plaintiff's cross-motion is denied as academic.

Under Part 137, clients of attorneys may elect to arbitrate, rather than litigate, fee disputes with their lawyers up to a certain amount. Before bringing an action for unpaid fees, an attorney must provide his or her client with written notice of the client's right to arbitrate, served personally or by certified mail. (See 22 NYCRR § 137.6 [a] [1].) If the client does not seek to arbitrate within 30 days of service or receipt of the notice, the attorney may bring an action for the disputed fees. (See id. § 137.6 [b].)

If the attorney brings an action for the fees, the complaint must allege "that the client received notice under this Part of the client's right to pursue arbitration and did not file a timely request for arbitration," or that the fee dispute is not subject to Part 137. (Id.) The failure to provide such notice, or the failure to allege that the client received notice and did not elect to arbitrate (or that arbitration was not available), each require dismissal of the complaint. (See Kerner & Kerner v Dunham, 46 AD3d 372, 372 [1st Dept 2007]; accord Pascazi Law Offices, PLLC v Pioneer Natural Pools, Inc., 136 AD3d 878, 879 [2d Dept 2016].)

Plaintiff's complaint in this action concededly does not properly allege compliance with the requirements of § 137.6. Rather, the allegation in ¶ 6 of the complaint refers only to the right-to-arbitrate notice that plaintiff sought—unsuccessfully—to serve on defendants before commencing its first fee action.

Plaintiff attempts to dismiss this defect as a mere "typographical error in the date" given [*3]in ¶ 6, and that it is "unquestionable that the [Part 137] condition precedent was met" here. (NYSCEF No. 32 at 5 ¶ 16.) But ¶ 6 of the complaint gives not only a different date but a different method from the one on which plaintiff now seeks to rely—certified mail versus personal service.^[FN1] (See NYSCEF No. 1 at 2.)

Moreover, the requirement imposed by Part 137 is not that attorneys must establish in the action that they had properly served the right-to-arbitrate notice (and that the client did not elect to arbitrate), but that from the outset attorneys "must allege in the complaint" that they provided the requisite notice. (22 NYCRR § 137.6 [b].) Plaintiff thus cannot cure a defect in its complaint on this point by introducing new evidence in opposition to the motion to dismiss. Notably, although cross-moving on other grounds, plaintiff has not sought leave to file an amended complaint to correct its "typographical error" and properly allege valid service of the Part 137 notices.

In these circumstances, plaintiff's second action must be dismissed for failure to satisfy § 137.6 (b). This court therefore does not reach defendants' other asserted grounds for dismissal. And plaintiff's cross-motion for leave to file the affidavits of service of the summons and complaint is merely academic.

Accordingly, it is

ORDERED that defendants' motion to dismiss under CPLR 3211 is granted, and the complaint is dismissed, with costs and disbursements to be taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that plaintiff's cross-motion for leave to file affidavits of service is denied as academic; and it is further

ORDERED that defendants shall serve a copy of this order with notice of its entry on all parties and on the office of the General Clerk and on the office of the County Clerk, who is directed to enter judgment accordingly; and it is further

ORDERED that notice of entry may be served by mail or overnight delivery service, with defendants to e-file a copy of notice of entry (and accompanying affidavit(s) of service) on NYSCEF once filing of notices of entry in pending nonessential matters is again permitted by order of Chief Administrative Judge Lawrence Marks.