| Landa v Dratch |
| 2007 NY Slip Op 08998 [45 AD3d 646] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Jay Landa, Appellant, v Barrie Dratch,Respondent. |
—[*1]
In an action to recover legal fees, the plaintiff appeals from so much of an order of theSupreme Court, Nassau County (Spinola, J.), dated April 3, 2007, as denied his motion to strikeallegedly prejudicial and unnecessary matter from the defendant's answer, to dismiss thedefendant's affirmative defenses, for summary judgment on his first cause of action for anaccount stated in the sum of $28,275, and for an award of costs.
Ordered that on the Court's own motion, so much of the notice of appeal as purports toappeal as of right from so much of the order as denied that branch of the plaintiff's motion whichwas to strike allegedly prejudicial and unnecessary matter from the defendant's answer is deemedto be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[b] [3];[c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the motion which were to strike allegedly prejudicial and unnecessary matterfrom the answer, to dismiss the third and fourth affirmative defenses, and for summary judgmenton the first cause of action for an account stated in the sum of $28,275, and substituting thereforprovisions granting those branches of the motion; as so modified, the order is affirmed insofar asappealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
In this action to recover legal fees, the plaintiff timely sought de novo review of the merits ofa fee dispute following arbitration (see 22 NYCRR 137.8). Under these circumstances,the nonfinal and nonbinding arbitration award is inadmissible as evidence at the trial de novo(see 22 [*2]NYCRR 137.8 [c]) and, therefore, may not beattached as an exhibit to the defendant's answer or otherwise referred to in the defendant'spleading (see CPLR 3024 [b];Soumayah v Minnelli, 41 AD3d 390 [2007]; Wegman v Dairylea Coop., 50AD2d 108, 111 [1975]). For the same reason, the defendant's third and fourth affirmativedefenses, which rely on the allegedly final and binding nature of the arbitration award, shouldhave been dismissed, as those affirmative defenses are not available to the defendant.
Moreover, the plaintiff established his prima facie entitlement to summary judgment on hisfirst cause of action for an account stated in the sum of $28,275 by tendering invoices forservices rendered prior to March 4, 2005, setting forth his hourly rate, the billable hoursexpended, and the particular services rendered (cf. Ween v Dow, 35 AD3d 58, 62 [2006]), and by establishing thatthe defendant duly approved such invoices and made a partial payment thereon (see Landa vSullivan, 255 AD2d 295 [1998]). In opposition, the defendant failed to raise a triable issue offact.
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Goldstein, Skelos andFisher, JJ., concur.