| Fishkin v Taras |
| 2008 NY Slip Op 06505 [54 AD3d 260] |
| August 5, 2008 |
| Appellate Division, First Department |
| Howard Fishkin et al., Appellants, v Bert Taras et al.,Respondents. |
—[*1] Anthony J. Cugini, Jr., New York, for respondents.
Order, Supreme Court, New York County (Carol R. Edmead, J.), entered December 5, 2006,which, insofar as appealed from as limited by the briefs, granted defendants' motion for summaryjudgment dismissing plaintiffs' first, second, third, seventh and ninth causes of action, and deniedplaintiffs' cross motion to compel discovery, unanimously modified, on the law, the facts, and inthe exercise of discretion, the motion denied with respect to the first cause of action and thematter remanded for further proceedings thereon, and otherwise affirmed, without costs.
With one exception, the motion court properly granted defendants summary judgment to theextent indicated in this fee dispute between attorneys, where plaintiffs failed to file retainerstatements in compliance with Rules of the Appellate Division, First Department (22 NYCRR)§ 603.7 (a) (3), "a prerequisite to receipt of compensation for legal services"(Rabinowitz v Cousins, 219 AD2d 487, 488 [1995]). Plaintiffs' belated filing of severalof the subject retainer statements was insufficient to preserve their right to recover legal fees.Indeed, the record shows that these statements were only filed in response to defendants' motionfor summary judgment and plaintiffs did not seek permission to file the statements nunc pro tunc.Nor did plaintiffs offer a reasonable excuse for their failure to timely file (compare Matter ofAbreu, 168 Misc 2d 229, 234 [1996]).
However, with respect to the first cause of action relating to the Brooks case, the recordindisputably shows that plaintiff Fishkin filed a retainer statement on October 31, 1994, whichwas 18 months after he was retained, but only seven days after defendants belatedly filed theirown retainer statement in the same matter. While the motion court may have been confused byFishkin's later nunc pro tunc filing of an amended retainer statement in June 2006, wefind that, taken together, Fishkin's initial 1994 filing and his 2006 nunc pro tunc filing create atriable issue as to whether there was sufficient compliance with 22 NYCRR 603.7 (a) (3) topermit this action to proceed.
We have considered plaintiffs' remaining arguments and find them unavailing.Concur—Gonzalez, J.P., Nardelli, Buckley and Catterson, JJ.
Reargument granted, and upon reargument decision and order of this Court entered April 10,2008 (50 AD3d 400 [2008]) recalled and vacated and a new decision and order substitutedtherefor. Leave to appeal to the Court of Appeals denied, as indicated.