| Wallenstein v Cohen |
| 2007 NY Slip Op 09023 [45 AD3d 674] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Laurie Wallenstein, Respondent, v Robert A. Cohen et al.,Appellants. |
—[*1] Jeffrey Levitt, Amityville, N.Y., for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal froman order of the Supreme Court, Suffolk County (Molia, J.), dated May 30, 2006, which deniedtheir motion to dismiss the complaint pursuant to CPLR 3211 (a).
Ordered that the order is reversed, on the law, with costs, and the defendants' motion todismiss the complaint pursuant to CPLR 3211 (a) is granted.
The defendants represented the plaintiff in connection with a matrimonial action. More thanthree years after the action was commenced, the plaintiff was awarded a judgment of divorcepursuant to a stipulation of settlement negotiated on her behalf by the defendants. Thereafter, theplaintiff wrote a letter to the Grievance Committee for the Tenth Judicial District (hereinafter theGrievance Committee) complaining that the defendants charged her excessive fees, "neverhandled the case properly," and did not protect her best interests. The Grievance Committeereferred the matter to the Fee Arbitration Program for Domestic Relations Matters (see22 NYCRR former part 136), and the plaintiff filed a request for fee arbitration pursuant to22 NYCRR former 136.5. The plaintiff was represented by new counsel at the fee arbitrationhearing, where both the plaintiff and the defendant Robert A. Cohen testified. The panel ofarbitrators determined that the defendants were entitled to a substantial portion of the total feeswhich they sought. Almost two years after the arbitration determination was made, the plaintiffcommenced this action alleging, inter alia, that the defendants charged excessive fees andcommitted fraud and legal malpractice in [*2]connection withtheir representation of her.
We agree with the defendants that all of the allegations in the complaint were "reasonablyand plainly comprehended to be within the scope of the dispute submitted to arbitration"(Altamore v Friedman, 193 AD2d 240, 247 [1993]). The determination fixing the valueof the defendants' services necessarily determined that there was no malpractice (see Blair vBartlett, 75 NY 150, 154 [1878]; Koppelman v Liddle, O'Connor, Finkelstein &Robinson, 246 AD2d 365, 366 [1998]; Altamore v Friedman, 193 AD2d at 246;Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143, 145-146 [1980]).Accordingly, the Supreme Court should have granted that branch of the defendants' motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by arbitration andaward and by the doctrine of collateral estoppel. Spolzino, J.P., Krausman, Carni and Dickerson,JJ., concur.