Wagner Davis P.C. v. Gargano , 983 N.Y.S.2d 27 ( 2014 )

Order, Supreme Court, New York County (George J. Silver, J.), entered August 20, 2013, which granted plaintiffs motion for summary judgment and ordered a hearing to determine the amount of attorney’s fees to which plaintiff is entitled, unanimously affirmed, without costs.

In this action for unpaid legal fees, defendants asserted a counterclaim for legal malpractice alleging that they would have prevailed on a motion for a preliminary injunction in the underlying action commenced by defendants against their neighbors over a retaining wall between their properties, if it had been made earlier by plaintiff. However, defendants failed to establish that they would have been successful on the motion absent counsel’s delay (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]). In any event, plaintiffs delay while a new expert prepared a report on the challenged retaining wall, was a reasonable strategic decision that cannot form the basis of a malpractice claim (Morrison Cohen Singer & Weinstein v Zuker, 203 AD2d 119, 119 [1st Dept 1994]).

Defendants’ contention that the claims for fees should not have been granted due to plaintiffs failure to comply with the rules on fee arbitration is unavailing. The complaint expressly states that the amount of damages sought is $56,943.25, which is beyond the maximum amount covered by the Fee Dispute Resolution Program (see 22 NYCRR 137.1 [b] [2]; Kerner & Kerner v Dunham, 46 AD3d 372 [1st Dept 2007]). Although defendants’ arguments regarding the amount of the fees were deferred to an evidentiary hearing, the motion court properly declined to consider the unnotarized, out of state report of defendants’ expert (see CPLR 2309, 2106). Concur — Mazzarelli, J.E, Sweeny, Andrias, Manzanet-Daniels and Kapnick, JJ.