Blodnick, Fazio & Associates, P.C. (Paul A. Lanni of counsel), for appellants. Harfenist, Kraut & Perlstein, LLP (Neil Torczyner of counsel), for respondent.

Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated June 15, 2023. The order granted defendant's motion to dismiss the complaint on the ground that the Surrogate's Court, Nassau County, had previously determined plaintiffs' cause of action.

ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a determination, on the merits, of so much of defendant's motion as sought to dismiss the complaint upon the ground that plaintiffs failed to inform defendant of her right to seek arbitration within two years following the rendering of plaintiffs' services.

In this action, plaintiffs seek to recover the principal sum of $18,660 in attorney's fees. In 2014, defendant, who was then a co-executor of the estate of her mother, Evelyn Hudis, retained plaintiffs to represent her "in matters concerning" the Hudis estate, after defendant's sister, who was also a co-executor of the estate, sought to have defendant's letters testamentary revoked. Plaintiffs represented defendant from July 2014 until May 2015, when defendant terminated plaintiffs' employment. Between that time and 2018, defendant was represented by two other law firms. The Surrogate's Court, Nassau County, subsequently dismissed the petition of defendant and her sister due to their inability to cooperate; defendant moved to renew and reargue that decision; and, on June 5, 2018, the Surrogate's Court decreed, among other things, that, of the total amount he sought, plaintiff Philip M. Bernstein was entitled to be paid $4,000 from the Hudis estate for the balance of the legal services he had rendered to defendant as an executor of the estate, with 75% of the fee allocated to defendant's share of the estate. Defendant appealed from that decree, which the Appellate Division, Second Department, affirmed on October 14, 2020 (Matter of Hudis, 187 AD3d 910 [2020]).

On or about October 23, 2020, plaintiffs commenced this action in Supreme Court, Nassau County, seeking to recover legal fees which they had sought, but had not been awarded, in the Surrogate's Court. In 2022, the action was transferred to the Nassau County District Court [*2]pursuant to CPLR 325 (d), where plaintiffs served a formal complaint in which they alleged that they "were not required to serve a Fee Arbitration Packet upon Defendant pursuant to 22 NYCRR § 137 et seq. and applicable regulations and case law," and that "the instant debt falls outside of the scope of 22 NYCRR § 137 et seq." because more than two years had passed since they had last represented defendant (see Rules of Chief Admr of Cts [22 NYCRR] § 137.1 [b] [6]). The complaint asserted causes of action for breach of contract, quantum meruit, unjust enrichment, and on an account stated.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) on the ground that plaintiffs failed to comply with a condition precedent to commencing a lawsuit in that they did not provide defendant with written notice of her right to arbitrate (see 22 NYCRR 137.6 [a] [1]). Plaintiffs opposed defendant's motion. Characterizing Rules of the Chief Administrator of the Courts (22 NYCRR) 137.1 (b) as setting out eight exceptions to that general rule regarding notice of a client's right to arbitrate, the District Court denied defendant's motion to the extent that it sought dismissal based upon plaintiffs' failure to inform defendant of her right to seek arbitration within two years of the rendering of the legal services (see 22 NYCRR 137.1 [b] [6]), upon a finding that the requirement to notify defendant of that right was inapplicable because a different subdivision of 22 NYCRR 137.1 (b) applied, in that plaintiffs' fee had been determined by the Surrogate's Court, Nassau County (see 22 NYCRR 137.1 [b] [5]). In light of its application of 22 NYCRR 137.1 (b) (5), the District Court noted that it need not pass upon the applicability of 22 NYCRR 137.1 (b) (6). The District Court then granted defendant's motion to dismiss upon a finding that the Surrogate's Court had made a final determination as to plaintiffs' fees for services they had provided to defendant as a fiduciary of the estate. Plaintiffs appeal from that order.

22 NYCRR 137.6 (a) (1) states that "where [an] attorney and client cannot agree as to the attorney's fee or where the attorney seeks to commence an action against the client for attorney's fees, the attorney shall forward a written notice to the client, entitled Notice of Client's Right to Arbitrate, by certified mail or by personal service." 22 NYCRR 137.1 (b) sets out eight instances in which the whole of Part 137 "shall not apply," including "disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right by a court; or where the fee has been determined pursuant to a court order" (22 NYCRR 137.1 [b] [5]) and "disputes where no attorney's services have been rendered for more than two years" (22 NYCRR 137.1 [b] [6]). Since the applicability of 22 NYCRR part 137 ends two years after the last attorney's services are rendered, it has been held to be a violation of 22 NYCRR part 137 to wait more than two years after legal services have been rendered to provide notice of the right to arbitrate, as this delay "deprive[s] [clients] of the right to arbitrate"(Filemyr v Hall, 186 AD3d 117, 119-120 [2020]).

In determining a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every favorable inference, and the court's role is to determine only whether the facts, as alleged, fit into any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Kaufman v Kaufman, 206 AD3d 805, 806 [2022]; Williams v Long Is. Coll. Hosp., 83 AD3d 826, 826-827 [2011]).

The Surrogate's Court is authorized to award reasonable compensation to attorneys for legal services that benefit an estate as a whole (see Matter of Brody, 202 AD3d 781, 782 [2022]; Matter of Heino, 186 AD3d 1216, 1218-1219 [2020]; Matter of Albert, 137 AD3d 1266, 1269 [2016]), and bears the ultimate responsibility for approving legal fees that are charged to an estate (see Matter of Linder, 153 AD3d 1343, 1345 [2017]; Matter of Talbot, 122 AD3d 867, 868 [2014]; see also Matter of Stortecky v Mazzone, 85 NY2d 518 [1995]). Where a client agrees, in a retainer agreement, to be individually liable to the attorney for his or her legal services, the fact that the attorney was retained in connection with estate litigation does not necessarily bar the attorney's right of action for legal fees beyond those that were awarded by the Surrogate's Court (see Coudert Bros. v de Cuevas, 247 AD2d 266, 266 [1998], lv denied 92 NY2d 813 [1998]).

The complaint in this action refers to defendant's retention of plaintiffs to represent her in the Surrogate's Court action "and related legal matters," and it cannot be determined from the complaint whether such matters included services for which plaintiffs were entitled to be compensated but which failed to benefit the estate. Furthermore, the retainer agreement, a copy of which was annexed to the complaint, was addressed to and signed by defendant, individually, without reference to her capacity as co-executor of the estate (cf. Christopher J. Cassar, P.C. v Spradley, 63 Misc 3d 145[A], 2019 NY Slip Op 50672[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019] [reversing the dismissal of an action for attorney's fees where the defendant had signed an agreement retaining the plaintiff attorney to represent her brother but had not indicated on the retainer agreement that she was signing it in a representative capacity]). In this circumstance, accepting the facts as alleged in the complaint to be true and according plaintiffs the benefit of every favorable inference, we conclude that the District Court erred in determining, as a matter of law, based on the complaint and the annexed retainer agreement, that defendant had only signed the retainer agreement in her fiduciary capacity; rather, we find that the complaint asserted potentially cognizable causes of action against defendant, individually.

Since there is a factual issue as to whether defendant signed the retainer agreement in part in her individual capacity, it cannot be determined whether the Surrogate Court's decree barred plaintiffs' right of action for legal fees beyond those that the Surrogate's Court had awarded. Thus, contrary to the finding of the District Court, it cannot be determined at this juncture whether plaintiffs were exempt from the requirement to notify defendant of her right to arbitrate the fee dispute between the parties because the disputed fee had previously been established by a court order (see Rules of Chief Admr of Cts [22 NYCRR]) § 137.1 [b] [5]).

In light of the foregoing, we remit the matter to the District Court to determine the issue it left undecided: whether plaintiffs' failure to notify defendant of her right to arbitrate the parties' fee dispute within two years after defendant terminated plaintiffs' employment requires dismissal of the complaint on the ground that plaintiffs "waived [their] right to initiate an action in court" (Filemyr v Hall, 186 AD3d at 122) or whether, due to extenuating circumstances, this case is distinguishable from Filemyr v Hall, where the Appellate Division found that the "[p]laintiff's violation of part 137 constituted unethical conduct sufficient to constitute unclean hands" (id. at 121).

Accordingly, the order is reversed and the matter is remitted to the District Court for a determination, on the merits, of so much of defendant's motion as sought to dismiss the [*3]complaint upon the ground that plaintiffs failed to inform defendant of her right to seek arbitration within two years following the rendering of plaintiffs' services.

GARGUILO, P.J., DRISCOLL and WALSH, JJ., concur.