| Granato v Granato |
| 2010 NY Slip Op 05884 [75 AD3d 434] |
| July 1, 2010 |
| Appellate Division, First Department |
| Barbara Granato, Plaintiff, v Pasquale Fabio Granato,Respondent. Diahn W. McGrath, Nonparty Appellant. |
—[*1] Eaton & Van Winkle LLP, New York (Robert N. Swetnick of counsel), forrespondent.
Order, Supreme Court, New York County (Sue Ann Hoahng, Special Ref.), entered on orabout May 11, 2009, which granted defendant's motion to dismiss his former attorney's motionfor additional legal fees and ancillary relief, and denied attorney Diahn W. McGrath's motion forlegal fees and ancillary relief, unanimously reversed, on the law, with costs, defendant's motiondenied and McGrath's granted, and the matter remanded for determination of the amount ofreasonable legal fees recoverable by McGrath.
Defendant opposes his former attorney's application for additional legal fees on the groundthat she failed to comply with the rules governing matrimonial retainer agreements (22 NYCRRpart 1400). We find that McGrath substantially complied with the rules and therefore is notprecluded from recovering reasonable fees for services rendered (see Flanagan vFlanagan, 267 AD2d 80 [1999]). The record establishes that, although McGrath preparedand sent defendant a retainer agreement, defendant, who does not deny that he received theagreement, never signed and returned a copy of it to her. However, it also shows that defendantpaid the retainer fee of $7,500 provided for in the agreement, and that, over the course of twoyears, McGrath rendered services to him, he received numerous billing statements from her andmade extensive payments, and he never objected to any of the bills until after he discharged herin July 2008. Under these circumstances, we find that, notwithstanding that he never returned asigned copy to McGrath, defendant ratified the retainer agreement (see Matter of Edelstein v Greisman, 67AD3d 796, 797 [2009]).
Defendant's contention that the retainer agreement did not adequately apprise him of hisright to seek arbitration of any fee dispute is belied by the fact that the standardized statement ofclient's rights and responsibilities (reproduced from 22 NYCRR 1400.2), which expresslyincludes this right, was appended to the agreement. His contention that McGrath failed to submitwritten statements at least every 60 days, as the retainer agreement provided for, is alsounavailing, since by failing to object to any of her bills until after he discharged her in July 2008,he [*2]waived his right to be billed at least every 60 days (see Johnner v Mims, 48 AD3d1104 [2008]). Concur—Andrias, J.P., Friedman, McGuire, Acosta and DeGrasse, JJ.