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MICHAEL L. PAIKIN, et al., Plaintiffs-Respondents. v. GARY TSIRELMAN, Defendant-Appellant. MICHAEL J. ASTA, ESQ., Non-Party Appellant.

In this action for unpaid attorneys' fees in a matrimonial action, plaintiff's failure to provide his client with 30 days written notice of his right to arbitrate any fee dispute (22 NYCRR 136.5 [a]) and his failure to allege in his complaint that the client received such notice and did not file a timely request for arbitration (22 NYCRR 136.5[c]) require dismissal of the complaint (see, Julien v. Machson, 245 A.D.2d 122).

Plaintiff's claim that the foregoing notice requirement was never triggered because of his client's failure to object to his billings and that, therefore, he is entitled to recover on the basis of an account stated is without merit. As found by the court in Lewis Merritt v. Smith ( 170 Misc.2d 192, 194 [Thomas P. Phelan, J.]), to interpret the common-law principles of an account stated, so as to find that a matrimonial client's failure to affirmatively object to his or her attorney's billings may provide a basis for circumventing the notice and pleading requirements of 22 NYCRR 136.5, would effectively eviscerate the fee arbitration rules governing domestic relations matters.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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PAIKIN v. TSIRELMAN
(Nov 30, 1999)