In the Matter of Law Offices of Thomas F. Liotti, LLC, et al., respondents,
Farzad Davoudiasl, appellant. Index No. 1728/15
T. Yitzhak, Esq., P.C., Great Neck, NY (Giulia Palermo of
counsel), for appellant.
Offices of Thomas F. Liotti, LLC, Garden City, NY (Thomas F.
Liotti pro se and Lucia Maria Ciaravino of counsel),
respondent pro se.
RANDALL T. ENG, P.J. RUTH C. BALKIN SANDRA L. SGROI BETSY
DECISION & ORDER
proceeding pursuant to CPLR article 75 to confirm an
arbitration award, Farzad Davoudiasl appeals, as limited by
his brief, from so much of an order of the Supreme Court,
Nassau County (McCormack, J.), entered August 11, 2015, as
upon, in effect, reargument, adhered to a prior determination
in an order entered April 8, 2015, granting the petition to
confirm the award, and directed the resubmission of a
judgment on notice.
that the order entered August 11, 2015, is affirmed insofar
as appealed from, with costs.
petitioner Law Offices of Thomas F. Liotti, LLC (hereinafter
the firm), represented the appellant, Farzad Davoudiasl, in a
matrimonial action. A fee dispute between the appellant and
the firm was subsequently submitted to a panel of arbitrators
pursuant to the Fee Dispute Resolution Progam (see
22 NYCRR 137.0). On May 19, 2014, the arbitrators made an
award in favor of the firm in the sum of $34, 565.13. The
appellant alleges that he thereafter made attempts to file a
demand for a trial de novo, but that his attempts were
unsuccessful due to law office failure. On February 23, 2015,
the firm and Thomas F. Liotti commenced this proceeding in
the Supreme Court, Nassau County, to confirm the arbitration
award. In an order entered April 8, 2015, the Supreme Court
granted the petition and directed submission of a judgment,
incorrectly stating that the petition had been unopposed. The
appellant then moved, inter alia, in effect, for leave to
reargue. Upon, in effect, reargument, the court considered
the appellant's opposition papers, in which he asserted
that his attempts to file a demand for a trial de novo had
been unsuccessful due to law office failure, but did not
specify any objections to the arbitration award. In the order
appealed from, the court, upon, in effect, reargument,
adhered to the prior determination granting the petition to
confirm the award, and directed resubmission of a judgment.
NYCRR 137.8(a) requires a party aggrieved by an arbitration
award in a fee dispute to "commence an action
on the merits of [his or her] fee dispute [with the firm] in
a court of competent jurisdiction within 30 days after the
arbitration award has been mailed" (emphasis added). The
rule further provides that where no such action is commenced
within the prescribed time, "the award shall become
final and binding" (see also 22 NYCRR 137.2[a];
22 NYCRR 137.7[f]). Under the plain terms of this rule,
neither the mailing nor the filing of a "demand for
trial de novo" can "constitute the commence[ment
of] an action on the merits of a fee dispute in court of
competent jurisdiction' within the meaning of section
137.8(a)" (Pruzan v Levine, 18 Misc.3d 70');">18 Misc.3d 70 [App
Term, 2d Dept], revg 15 Misc.3d 377');">15 Misc.3d 377 [Civ Ct, Kings
County]; cf. 22 NYCRR 28.12[a]).
the appellant failed to commence an action on the merits of
the fee dispute within 30 days of the mailing of the
arbitration award, the award became "final and binding,
" regardless of whether, as he now alleges, a court
clerk impeded his efforts to file a demand for a trial de
novo. "[T]he 30-day period in which a party aggrieved by
an arbitration award in a legal fee dispute may commence an
action for de novo review of that award is absolute and,
thus, the Supreme Court [does] not have discretion to excuse
[any] late commencement of an action for de novo review"
(Matter of Gold, Stewart, Kravits, Benes, LLP v
Crippen, 109 A.D.3d 919, 920; see Agovino &
Asselta, LLP v Rubens, 36 Misc.3d 67');">36 Misc.3d 67 [App Term, 2d Dept,
9th and 10th Jud Dists]; Gallet, Dreyer, Berkey, LLP v
Carol, 35 Misc.3d 138');">35 Misc.3d 138 [A], 2012 WL 1676739 [App Term,
1st Dept]; Feld v Ginsburg, 46 Misc.3d 1216');">46 Misc.3d 1216 [A],
2015 WL 466135[U] [Civ Ct, Richmond County]; DeFilippo v
Gerbino, 12 Misc.3d 1153');">12 Misc.3d 1153 [A], 2005 WL 4014967[U], *1
[Civ Ct, New York County]; cf. Mahl v Rand, 11
Misc.3d 1072 [A], 2006 WL 825117[U] [Civ Ct, New York
County]; Borgus v Marianetti, 7 Misc.3d 1003');">7 Misc.3d 1003 [A],
2005 WL 742300[U] [Rochester City Ct]).
the appellant forfeited his right to a trial de novo under 22
NYCRR 137.8(a) by failing to commence a timely action for de
novo review of the award, and did not establish any other
basis for vacatur or modification of the award under review.
Contrary to the appellant's only argument, the order
entered August 11, 2015, insofar as it ...