Christophe Law Group, P.C. v. Kokomani , 52 N.Y.S.3d 613 ( 2017 )

OPINION OF THE COURT

Per Curiam.

Order, entered on or about December 21, 2015, affirmed, with $10 costs.

Plaintiff law firm was retained by defendant client with respect to an immigration matter. Paragraph 8 of the governing retainer agreement between the parties provided, in relevant part, that in the event of “litigation” relating to the subject matter of the retainer agreement, the non-prevailing party shall reimburse the prevailing party for attorneys’ fees. Construing the agreement in the light most favorable to defendant client (see Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177 [1986]), we agree that defendant is not obligated to reimburse plaintiff for legal fees incurred in a fee arbitration requested by defendant pursuant to 22 NYCRR part 137 that was settled pursuant to an agreement whereby defendant agreed to pay the disputed fee.

The Fee Dispute Resolution Program codified in part 137 “provides for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation” (22 NYCRR 137.0). This informal dispute resolution does not constitute “litigation” as that term is used in paragraph 8 of the retainer agreement (see Matter of Covert, 97 NY2d 68, 76 [2001] [if the contract terms are clear and unambiguous, these terms are to be taken and understood in their plain, ordinary and proper sense]). According to Black’s Law Dictionary, “litigation” is defined as “[t]he process of carrying on a lawsuit” (Black’s Law Dictionary 1075 [10th ed 2014]). Likewise, “lawsuit,” or “suit,” is defined as “[a]ny proceeding by a party or parties against another in a court of law” (id. at 1663; see also Horse-Shoe Capital v American Tower Corp., 30 Misc 3d 1220[A], 2011 NY Slip Op 50143[U] [Sup Ct, NY County 2011]). Thus, even assuming that plaintiff was the prevailing party, the Fee Dispute Resolution Program proceedings did not constitute “litigation” and therefore, plaintiff is not entitled to legal fees pursuant to the retainer agreement.

Lowe, III, P.J., Ling-Cohan and Gonzalez, JJ., concur.