| Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. v Torino Jewelers,Ltd. |
| 2007 NY Slip Op 08117 [44 AD3d 581] |
| October 30, 2007 |
| Appellate Division, First Department |
| Eiseman Levine Lehrhaupt & Kakoyiannis, P.C.,Appellant, v Torino Jewelers, Ltd., et al., Respondents. |
—[*1] Law Office of Ryan S. Goldstein, P.L.L.C., New York City (Ryan S. Goldstein), forrespondents.
Order, Supreme Court, New York County (Carol Edmead, J.), entered May 19, 2006, which,granted defendants' motion to stay the action pending arbitration, reversed, on the law, withcosts, the motion denied, and the matter remanded for further proceedings.
On April 8, 2005, plaintiff Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. (ELLK) wasretained by defendants, Torino Jewelers, Ltd., Gili Vaturi, Tiran Sinai, and Nirit Sinai, torepresent them as defendants in a lawsuit in the United States District Court in the SouthernDistrict of New York. The retainer agreement provided for an initial payment of $25,000 andmonthly payments "anticipated" in the aggregate, not to exceed $60,000, for preliminaryrepresentation and the preparation and filing of a motion to dismiss the complaint. The retaineragreement also provided: "Please be advised that, should a fee or cost dispute arise between usconcerning an amount between $1,000 and $50,000, you may select to resolve the disputethrough arbitration proceedings in New York City in accordance with 22 NYCRR 137. NewYork law will govern the dispute." On May 27, 2005, ELLK filed a motion to dismiss thecomplaint in the federal action on defendants' behalf. The federal complaint was amended andELLK drafted and served a second motion to dismiss. On March 22, 2006, the federal courtdismissed that action as against defendant Torino Jewelers, but not as against the otherdefendants.
Also on March 22, 2006, ELLK met with defendants to discuss their continuedrepresentation. The parties agree that as of that date, defendants owed ELLK $49,424.80 in legalfees. However, they sharply dispute what happened at the meeting. Defendants contend that theyinstructed ELLK to stop working on their case. ELLK denies that it was instructed to stop itswork, and on March 23, 2006, ELLK, by Eric Levine Esq., faxed a letter to defendants settingforth proposed fees for discovery, the next phase of the federal litigation. The final sentence ofthe letter states: "Please acknowledge your acceptance of these terms by signing below andreturning a signed copy to me." [*2]Gili Vaturi, the defendant towhom the letter was sent, did not sign or return the letter.
On March 31, 2006, ELLK wrote to the district court judge to request a 30-day extension fordefendants to file their answer. In that letter Mr. Levine stated:
"Yesterday morning I was informed by my clients that I was to cease immediately doing anyfurther work on the matter. They informed me that they had decided to retain new counsel. . . . Knowing that an answer to the complaint was due early next week, Iimmediately contacted my adversary, Donald Kravet, and left him a voice mail message in whichI asked for his consent to adjourn our time to answer by thirty days to allow my clients the timeto retain new counsel, and to afford the new counsel time to sufficiently familiarize himself withthe case. As you can see from his attached response, he declined.
"Yesterday afternoon . . . I received a telephone call from a Ryan Goldstein whoidentified himself to me as the defendants' new counsel . . . Mr. Goldstein told me. . . that he would be responsible for filing and serving the answer, he would contactMr. Kravet directly, and that he would provide me with a substitution of counsel. As of thismorning I have not received a substitution of counsel form . . . respectfully requestthat the Court grant a thirty day extension in which to file an answer."The district court gave defendants until April 21, 2006 to file the answer in that action.
On March 31, 2006, ELLK faxed defendants an invoice for $60,404.60. This included the$49,424.80 which had been incurred in March prior to the meeting on the 22nd, and $10,979.80for legal services provided between March 22 and March 29, 2006. A three page, itemizedbreakdown of the services provided to substantiate the $10,979.80 in fees was attached to theinvoice. Defendants made no payment.
ELLK then commenced this action. In lieu of filing an answer, defendants moved for a stayof the action and an order compelling the parties to proceed to arbitration. The court granteddefendants' motion, stating that arbitration is strongly favored in this state (Matter ofNationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91 [1975]), and that thedispute came within the scope of the subject arbitration agreement (Matter of Smith BarneyShearson v Sacharow, 91 NY2d 39, 49-50 [1997]). Plaintiff unsuccessfully moved forreargument, which was summarily denied. This appeal ensued.
The law is settled that whether a controversy is properly subject to arbitration is initially onefor the courts to determine (see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d594, 598 [1997]). The proponent of arbitration has the burden of demonstrating that the partiesagreed to arbitrate the dispute at issue (Gerling Global Reins. Corp. v Home Ins. Co., 302AD2d 118, 123 [2002], lv denied 99 NY2d 511 [2003]). An arbitration clause, as acomponent of a contractual agreement, must be enforced according to its terms (seeGreenfield v Philles Records, 98 NY2d 562, 569 [2002]; W.W.W. Assoc. vGiancontieri, 77 NY2d 157, 162 [1990]). Moreover, "a court will not order a party to submitto arbitration absent evidence of that party's unequivocal intent to arbitrate the relevant disputeand unless the dispute falls clearly within that class of claims which the parties agreed to refer toarbitration" (Primavera Labs. v Avon Prods., 297 AD2d 505, 505 [2002] [citations andinternal quotation marks omitted]).
Here the parties agreed to arbitrate disputes between $1,000 and $50,000 consistent with[*3]New York's "Fee Dispute Resolution Program," codified atRules of the Chief Administrator of the Courts (22 NYCRR) part 137. The State's Rulesspecifically provide that they do not apply where the amount in controversy is "more than$50,000," unless the parties consent to arbitration (22 NYCRR 137.1 [b] [2]). Although it isdefendants' contention that the amount in controversy here is $49,424.80, this is not anuncontroverted fact. In fact, it is ELLK's position that $60,404.60 is at issue, as previously billed,and they do not consent to arbitration. In the absence of a claim of overreaching or overbearing,the retainer agreement executed by the parties should be enforced as written (see Ermiger v Black, 36 AD3d1053, 1054 [2007]; Agip Petroleum Co. v 666 Fifth Ave. Ltd. Partnership, 297AD2d 483, 485 [2002], lv denied 99 NY2d 504 [2002]; see Matter of Woolfson,158 Misc 928, 931 [1936]). Thus, arbitration pursuant to part 137 of the Rules of the ChiefAdministrator of the Courts cannot be compelled (Borovina & Marullo, PLLC v Structured Assets Sales Group, LLC, 17AD3d 387 [2005]). Accordingly, we reverse the order appealed and deny defendants'motion. Concur—Mazzarelli J.P., Andrias, Sullivan and Nardelli, JJ.
McGuire, J., dissents in a memorandum as follows: The arbitration provision in the retaineragreement between the parties sheds little light on how to resolve the arbitrability dispute that iscentral to this appeal. Nonetheless, we must resolve it and do so in accordance with principles ofcontract interpretation. Because that provision reflects and refers to an arbitration provision thatis mandated by law, it also is appropriate to consider the public policy considerations that informboth arbitration generally and the attorney-client relationship. I respectfully dissent because Ibelieve the majority's resolution of the arbitrability dispute is not consistent with principles ofcontract interpretation or public policy considerations.
In April 2005 defendants Torino Jewelers, Ltd., Gili Vaturi, Tiran Sinai and Nirit Sinai (theTorino defendants) retained plaintiff Eiseman Levine Lehrhaupt & Kakoyiannis, P.C. (ELLK) torepresent the Torino defendants in a civil action commenced against them in federal court. TheTorino defendants signed a retainer letter prepared by ELLK in which it was agreed "that, shoulda fee or cost dispute arise between us concerning an amount between $1,000 and $50,000, you[i.e., the clients] may select to resolve the dispute through arbitration proceedings in New YorkCity in accordance with 22 NYCRR 137. New York law will govern the dispute."
Part 137 of the Rules of the Chief Administrator of the Courts "establishes the New YorkState Fee Dispute Resolution Program [the Program], which provides for the informal andexpeditious resolution of fee disputes between attorneys and clients through arbitration andmediation. In accordance with the procedures for arbitration, arbitrators shall determine thereasonableness of fees for professional services" (22 NYCRR 137.0). The Program "appl[ies]where representation . . . commenced on or after January 1, 2002, to all attorneysadmitted to the bar of the State of New York who undertake to represent a client in any civilmatter" (22 NYCRR 137.1 [a]). It does not apply, however, to "amounts in dispute involving asum of less than $1,000 or more than $50,000" (22 NYCRR 137.1 [b] [2]), unless the partiesagree otherwise. If the dispute is subject to the Program, arbitration is mandatory for an attorneyif requested by the client (22 NYCRR 137.2 [a]).
Arbitration awards under the Program are not necessarily or automatically binding upon[*4]the parties. Rather "[d]e novo review" isavailable to either party as of right (22 NYCRR 137.8). Thus, "[a] party aggrieved by thearbitration award may commence an action on the merits of the fee dispute in a court ofcompetent jurisdiction within 30 days after the arbitration award has been mailed" (22 NYCRR137.8 [a]). If no such action is commenced, "the award shall become final and binding"(id.). If such an action is commenced, "the arbitration award [shall not] be admitted inevidence at the trial de novo" (22 NYCRR 137.8 [c]). In an apparent effort to summarizethese provisions, the arbitration provisions of the retainer agreement advises the Torinodefendants that "if you select arbitration, the arbitration result will be final and binding unlessde novo review is sought as provided in 22 NYCRR 137.2 [sic]."[FN1]
On March 22, 2006, following ELLK's receipt of a decision of the federal court granting inpart and denying in part the Torino defendants' motion to dismiss the amended complaint in thefederal action, ELLK and the Torino defendants met at the offices of ELLK. The parties offervery different accounts of what occurred at this meeting. The Torino defendants insist theyinstructed ELLK to stop working on the federal action because they believed the bills ELLKsubmitted for the work it performed were excessive. In particular, defendant Vaturi, one of theparticipants in the March 22 meeting, submitted an affidavit in which she swore that "the partiesmet to discuss the ongoing dispute regarding the excessive bills submitted by [ELLK]" and that"[ELLK] was directed to stop any further work until such time and [sic] the defendantscontacted [it]."
ELLK, on the other hand, maintains that the parties discussed the court's decision and how toproceed, and that the Torino defendants "wanted to use ELLK and wanted [ELLK] to continue todefend them in the [federal action]." ELLK also maintains that it agreed both to cap the cost ofthe next phase of the federal action, i.e., discovery, at $125,000 and to a schedule pursuant towhich the Torino defendants would pay the fees charged by ELLK. The billing records of ELLKindicate that the Torino defendants owed ELLK $49,424.80 as of the March 22, 2006 meeting.
The following day ELLK faxed to the Torino defendants a letter requesting that they confirmthat ELLK would continue to represent them in the federal action and that the fee arrangementwas acceptable. The letter concluded with a request that the Torino defendants acknowledge theiracceptance of the new terms by signing and returning the letter. The letter was never returned,signed or otherwise, by the Torino defendants to ELLK.
The Torino defendants assert that on March 27 they discharged ELLK "due to [its] ongoingsubmission of what [the Torino defendants] believed to be excessive billing." ELLK maintainsthat on March 24 one of the Torino defendants confirmed that the letter had been received andthat, pursuant to the proposed fee arrangement, a payment of $15,000 would be made to ELLKby March 27. No such payment was made and, according to ELLK, the Torino defendantsdischarged ELLK on March 30. By an invoice dated March 31, ELLK billed the Torinodefendants $10,979.80 for the work the firm had performed from March 22 to 29 and stated thatthe Torino defendants' total outstanding balance was $60,404.60.[*5]
On April 21, 2006, ELLK commenced this action againstthe Torino defendants seeking to recover the $60,404.60 balance. The Torino defendants movedto stay this action and compel arbitration of ELLK's claim. The Torino defendants argued that, asof March 22—the date they assert ELLK was told to stop working on the federalaction—they owed ELLK at most $49,424.80 and therefore the fee dispute was subject toarbitration pursuant to the retainer and 22 NYCRR part 137. ELLK opposed the motion, arguingthat the amount in dispute exceeded $50,000 and therefore was not subject to arbitration.Supreme Court granted the motion, stayed the action and compelled the parties to arbitrate.
The dispute on this appeal over the arbitrability of the underlying fee dispute or disputesturns on a pure question of historical fact: what happened during the March 22 meeting. Theparties do not dispute that as of that day the most the Torino defendants owed ELLK is just over$49,000, i.e., "an amount between $1,000 and $50,000." ELLK does not contend that it wouldhave a claim for $50,000 or more if it was instructed to stop working on March 22. Thus, if theTorino defendants instructed ELLK to stop working that day, the Torino defendants would beentitled to the informal and expeditious, but not necessarily binding, dispute resolutionprocedures of the Program; if the Torino defendants did not so instruct ELLK, ELLK would beentitled to go straight to court to have the fee dispute resolved by litigation.[FN2]Obviously, there are only two possibilities: the Torino defendants are correct and they did soinstruct ELLK, or ELLK is correct and the firm was not so instructed.
Understandably, the majority does not purport to choose between these two possibilities.After all, on the existing record there is no basis for doing so. Nonetheless, the majority rules thatthe Torino defendants are not entitled to arbitration. The sole justification the majority offers isthat the contention by the Torino defendants that the amount in controversy is less than $50,000(i.e., their contention that ELLK was instructed to stop working on March 22) "is not anuncontroverted fact." The majority does not otherwise explain its position, but it presumablywould defend along the following lines: there is a dispute about what was said on March 22, andwhich of the parties is correct about what was said is irrelevant to the issue of whether there is adispute. What is relevant is that the parties do not agree about what was said and, as a result, thetotal of the amounts in dispute exceeds $50,000.
If that is the majority's reasoning, I have no quarrel with it as a matter of logic. Nonetheless,the majority's ultimate conclusion—that the Torino defendants' factual assertions aboutwhat was said on March 22 are irrelevant to their arbitration rights—is not required by thelanguage of the arbitration provision. In my judgment, the majority's conclusion is erroneous as amatter of contract interpretation.[*6]
As noted, nothing in the arbitration provision of theretainer letter (or, for that matter, in part 137) addressees the question of how to determinewhether the amount of "a fee or cost dispute" exceeds $50,000. And as this case shows, ProfessorSiegel was correct when, after raising precisely this question about the Program, he observed that"trouble can arise" in determining whether the amount in dispute exceeds $50,000 (118 Siegel'sPractice Review, Rule 137 on Mandatory Arbitration of Attorney's Fee Disputes Takes EffectJanuary 1, 2002, and Applies in All [Not Just Matrimonial] Actions, at 1 [Jan. 2002]). Onesource of trouble is that "[i]t is quite possible for the lawyer to inflate what is really abelow-$50,000 claim just to escape the arbitration requirement. The cure for that is not clear"(id.).
I do not mean to suggest that ELLK has knowingly and falsely denied that it was instructedto stop working on March 22 in an attempt to escape the arbitration requirement. Unfortunately,however, there are unscrupulous lawyers and such a lawyer might make false statements orinflate a bill to avoid arbitration and place greater pressure on the client. All lawyers, moreover,can make mistakes. The majority's approach strikes me as unsatisfactory because it is heedless ofboth the reality that such improper conduct can occur and the possibility that in any given feedispute the lawyer may be mistaken about a factual matter that is decisive of the client's valuablearbitration rights. In another case, for example, whether the amount in dispute exceeds $50,000might turn on whether the attorney was authorized by the client to draft a contract or research anissue. Under the majority's approach, it would not matter if it were to turn out that due perhaps tosome law office failure the attorney was not so authorized. Rather, the lawyer's mistakeninsistence otherwise in opposing a motion to compel arbitration will be sufficient to deprive theclient of the benefits the Program was designed to confer (see Hon. Jonathan Lippman,Welcome Fee Dispute Arbitration Program, NYLJ, Jan. 22, 2001, at S1, col 5).Moreover, the extent of the factual support the client may be able to muster in opposition to thelawyer's position appears to be irrelevant under the majority's approach.
Without any apparent sense of the irony of its position, ELLK asserts that "[t]he notion that[the Torino defendants] can unilaterally decide the amount that is the subject of the disputesimply defies logic." Neither ELLK nor the majority explain why ELLK's unilateraldecision must be accepted. The majority adds to the irony in stressing that "[t]he proponent ofarbitration has the burden of demonstrating that the parties agreed to arbitrate the dispute atissue." After all, the majority denies the Torino defendants any opportunity to meet that burden.The one case the majority cites in support of its conclusion that arbitration cannot be compelledbecause ELLK contends that more than $50,000 is at issue, Borovina & Marullo, PLLC v Structured Assets Sales Group, LLC (17AD3d 387 [2005]), affords it no support as the opinion does no more than state that morethan $50,000 was in dispute (id. at 388).
Relatedly, in dismissing as irrelevant the clients' version of a factual dispute between theclients and their attorney, the majority's approach cannot be reconciled with the solicitude courtsordinarily have for the client in attorney-client fee matters (see Matter of Cooperman, 83NY2d 465, 472 [1994] ["attorney-client fee agreements are a matter of special concern to thecourts and are enforceable and affected by lofty principles different from those applicable tocommonplace commercial contracts"]). No lofty principle affects the majority's analysis. Nor is iteasy to reconcile the majority's approach with a key, pro-client aspect of the arbitration clausemandated by 22 NYCRR part 137—the right to demand arbitration that it confers isconferred solely on the client, not on the client and the attorney.[*7]
More fundamentally, however, arbitrability is a matter ofcontract interpretation (Matter of Salvano v Merrill Lynch, Pierce, Fenner & Smith, 85NY2d 173, 182 [1995] ["arbitration agreements are contracts and must be interpreted under theaccepted rules of contract law"]). Thus, in a case similar to this one in which the issue waswhether an arbitrability dispute should be resolved by litigation or arbitration, a panel of theDistrict of Columbia Circuit noted that in resolving the arbitrability dispute its task was "todetermine which of the two choices appears to be most faithful to the intent of the parties"(National R.R. Passenger Corp. v Boston & Me. Corp., 850 F2d 756, 760 [DC Cir1988]). In completely disregarding the client's factual contentions, the majority's approach is atodds with basic principles of contract interpretation (see Metropolitan Life Ins. Co. v NobleLowndes Intl., 84 NY2d 430, 438 [1994] ["A court will endeavor to give the (contract)construction most equitable to both parties instead of the construction which will give one ofthem an unfair and unreasonable advantage over the other" (citation and internal quotation marksomitted)]). In this respect, the majority's approach puts the client's arbitration rights at the mercyof the attorney (id. ["(l)anguage in contracts placing one party at the mercy of the other isnot favored by the courts" (citation and internal quotation marks omitted)]). At bottom, it isimplausible to suppose that both parties agreed that in the event of an arbitrability dispute likethis one the client's version of the disputed facts would be irrelevant.
In conclusively rejecting arbitration at the outset, the majority's approach is also at odds with"the long and strong public policy favoring arbitration" (Matter of Smith Barney Shearson vSacharow, 91 NY2d 39, 49 [1997]). In doing so merely on the strength of the factualassertions of the party opposing arbitration, the majority's approach is inconsistent with theprinciple that "[a]ny doubts as to whether an issue is arbitrable will be resolved in favor ofarbitration" (State of New York v PhilipMorris Inc., 30 AD3d 26, 31 [2006], affd 8 NY3d 574 [2007]; see alsoAT&T Technologies, Inc. v Communications Workers, 475 US 643, 650 [1986] ["where thecontract contains an arbitration clause, there is a presumption of arbitrability in the sense that'(a)n order to arbitrate the particular grievance should not be denied unless it may be said withpositive assurance that the arbitration clause is not susceptible of an interpretation that covers theasserted dispute. Doubts should be resolved in favor of coverage' "], quoting Steelworkers vWarrior & Gulf Nav. Co., 363 US 574, 582-583 [1960]). After all, the majority's approachperemptorily prevents legitimate doubts about arbitrability from being considered at all.
An approach opposite to the majority's, one that completely disregarded the attorney's factualcontentions and directed that such a factual dispute be resolved by arbitration, would be equallyflawed, because it would be just as one-sided. But that opposite approach would have at leastsome support in the language of the retainer agreement, which grants to the client the right toarbitrate "should a fee or cost dispute arise between us concerning an amount between $1,000and $50,000." Clearly, there is a fee dispute between the parties concerning an amount between$1,000 and $50,000: whether, on account of what was said during the March 22 meeting, theTorino defendants do or do not owe ELLK some $11,000 for legal work performed after March22. Presumably, ELLK's rejoinder would be that the client should not be permitted to defeat ordelay its right to litigate (i.e., secure for the client a right to arbitrate) by carving out of thematters in dispute the dispute over whether ELLK was directed to stop working on March 22.But this rejoinder fails to explain why ELLK should be permitted to secure a right immediately tolitigate (i.e., defeat the client's right to arbitrate) by aggregating the disputes between theparties.[FN3]
If we reject the two extremes, pursuant to which arbitrability is definitively resolved at theoutset solely on the basis of one side's factual contentions, that leaves two alternatives. As athreshold matter, the issue of whether ELLK was directed to stop working on March 22 could beresolved either by litigation or by arbitration. That is, the court or the arbitration panel couldconduct a hearing on whether ELLK had been directed to stop working and direct litigation orarbitration in accordance with its factual finding. Thus, if ELLK was not instructed to stopworking, the amount in dispute at the outset would be deemed to have exceeded $50,000 and theparties would litigate the remaining issues (the reasonableness of the pre-March 22 bill and anyobjections the Torino defendants may have to the reasonableness of the post-March 22 bill); ifELLK was so instructed, the amount in dispute at the outset would be deemed to have been lessthan $50,000 and the parties would arbitrate the remaining issue (the reasonableness of thepre-March 22 bill).
I would opt for a judicial rather than an arbitral determination of this threshold issue of fact.Adopting that rule is of course consistent with the settled principle that "[i]t is for the courts todetermine whether the . . . particular dispute comes within the scope of their[arbitration] agreement" (Matter of County of Rockland [Primiano Constr. Co.], 51NY2d 1, 5 [1980]; see also AT&T Technologies, 475 US at 649 ["the question ofarbitrability—whether (an agreement) creates a duty for the parties to arbitrate (a)particular grievance—is undeniably an issue for judicial determination"]; id.["(u)nless the parties clearly and unmistakably provide otherwise, the question of whether theparties agreed to arbitrate is to be decided by the court, not the arbitrator"]).
This approach would be consistent as well with the reasoning of the District of ColumbiaCircuit in National R.R. Passenger Corp. (supra). In that case, the issue waswhether a dispute between the parties to a contract containing a broad arbitration clause over theduration of the contract would be decided by a court or the arbitrators. The court concluded that"a sensible approach" was to "presume that the parties did not intend for disputes over contractduration to be referred to arbitration" if the arbitration clause "is a narrow one, covering onlyspecified types of disputes" (850 F2d at 762). Even in cases involving broad arbitration clauses,however, the [*8]court reasoned that disputes over whether thecontract had expired should be decided by the court rather than the arbitrator if the contract "withequal clarity provides that it will expire on a date certain" (id. at 763). Here, thearbitration clause is narrow in that only a subset of fee and cost disputes are subject to arbitration.All other disputes, such as "claims involving substantial legal questions, including professionalmalpractice or misconduct" (22 NYCRR 137.1 [b] [3]) and "claims against an attorney fordamages or affirmative relief other than adjustment of the fee" (22 NYCRR 137.1 [b] [4]), arenot subject to arbitration. Moreover, akin to the contract provision in National R.R. PassengerCorp. specifying that the contract would expire on a date certain, the retainer agreementspecifies (albeit with less than perfect clarity) that disputes over a certain amount are not subjectto arbitration at the option of the client.
Two final points should be made. First, the approach I would adopt is similar to the oneoutlined by Professor Siegel for an "arguably inflated" claim by an attorney that the $50,000arbitration cap has been exceeded (118 Siegel's Practice Review, Rule 137 on MandatoryArbitration of Attorney's Fee Disputes, at 1).[FN4]Borrowing from federal case law extending to a plaintiff's allegations of the amount incontroversy for purposes of federal jurisdiction in diversity cases "a rebuttable presumption thatthe face of the complaint is a good faith representation of the actual amount in controversy"(Wolde-Meskel v Vocational Instruction Project Community Servs., Inc., 166 F3d 59, 63[2d Cir 1999]), Professor Siegel would "credit[ ] the plaintiff's allegations—unless they arepatently and summarily refutable" (118 Siegel's Practice Review, Rule 137 on MandatoryArbitration of Attorney's Fee Disputes, at 1).[FN5]However, "[i]f the court can determine summarily, and early, that the plaintiff's claim could notsupport a judgment in excess of $50,000, it should dismiss it then and there, without prejudice toarbitration" (id.). Second, a hearing at the behest of the party seeking arbitration shouldnot be had for the asking. As noted, however, in support of their motion to stay this action andcompel arbitration, the Torino defendants submitted the affidavit of one of the defendants inwhich she swore that at the March 22 meeting ELLK was directed to stop any further work.
Accordingly, I would modify the order to the extent of remanding the matter to Supreme[*9]Court for a hearing on the threshold question of whether theTorino defendants directed ELLK on March 22 to stop working on the federal action (seeCPLR 7503 [a]).
Footnote 1: The correct reference should beto 22 NYCRR 137.8, not 22 NYCRR 137.2. In relevant part, the latter section specifies that"[t]he attorney and client may consent in advance to arbitration pursuant to this Part that is finaland binding upon the parties and not subject to de novo review" (22 NYCRR 137.2 [c]).
Footnote 2: From the submissions of theTorino defendants in support of their motion to compel arbitration it is not clear whether theycontend that they owe no part of the amount allegedly due as of March 22. An independent basisfor compelling arbitration might exist, however, if the Torino defendants had conceded that ofthe $49,424.80 allegedly due as of March 22 they owed an amount equal or greater than $10,405(the amount by which the claimed balance due exceeds $50,000). In that event, the amount indispute would be less than $50,000 even if ELLK was not instructed to stop working on March22.
Footnote 3: In essence, there are at least twodisputes between the parties: (1) the reasonableness of the pre-March 22 bill of just under$50,000, and (2) whether ELLK was instructed to stop working on March 22 and therefore hasno claim for the nearly $11,000 that it billed for post-March 22 work. Unquestionably, eitherdispute alone would be arbitrable at the option of the Torino defendants. On the one hand, ifattorneys are permitted under the Program to aggregate fee or cost disputes, they will have to thatextent an incentive to become enmeshed in additional fee or cost disputes. On the other hand, areason to conclude that fee or cost disputes can be aggregated—and, in my opinion, acompelling reason—is that the $50,000 limitation would be rendered largely meaninglessotherwise. Presumably, after all, only an unusual case would not be divisible into two or morediscrete disputes with the amount of each dispute involving a sum of less than $50,000.
Footnote 4: Professor Siegel does notdiscuss possible cases in which, like this one, the dispute over the applicability of the $50,000limitation turns on a pure question of historical fact.
Footnote 5: The analogy to the federalapproach is imperfect as the presumption accorded to the plaintiff's allegations under federal lawdoes not implicate the contractual rights of one of the parties.