Gramted. its a case from small claims court, and granted, it’s the Appellate Term, not the Appellate Division, but the rules recited in Law Offs. of Lydia C. Hills, P.C. v Holguin 2021 NY Slip Op 50032(U) [70 Misc 3d 135(A)] Decided on January 15, 2021 Appellate Term, Second Department remain true.
“Attorneys representing clients in domestic relations matters are subject to particular rules (see 22 NYCRR part 1400), which ” ‘were designed to address abuses in the practice of matrimonial law and to protect the public’ ” (Rosado v Rosado, 100 AD3d 856, 856 , quoting Hovanec v Hovanec, 79 AD3d 816, 817 ). The rules include a requirement that attorneys in such matters provide prospective clients with a written statement of their right “to receive a written, itemized bill on a regular basis, at least every 60 days” (22 NYCRR 1400.2), which right must also be reflected in the written retainer agreement for the attorney’s services (see 22 NYCRR 1400.3 ). A matrimonial attorney seeking to recover unpaid legal fees must demonstrate substantial compliance with the rules applicable to attorneys representing clients in domestic relations matters as an essential element of his or her prima facie case (see Greco v Greco, 161 AD3d 950, 951-952 ; Montoya v Montoya, 143 AD3d 865, 865-866 ; Hovanec v Hovanec, 79 AD3d 816, 816 ; Pillai v Pillai, 15 AD3d 466, 467 ; see also Gottlieb v Gottlieb, 101 AD3d 678, 679 ; cf. Edelman v Poster, 72 AD3d 182 ). Since, at trial, plaintiff failed to demonstrate that it had substantially complied with the rule requiring it to provide periodic billing statements to defendant at least every 60 days, plaintiff failed to make out a prima facie case, and the judgment in its favor failed to comply with substantive law (see CCA 1804, 1807).
“Whether specific conduct constitutes legal malpractice is a factual determination to be made by the trier of fact” (Weintraub v Petervary, 57 Misc 3d 153[A], 2017 NY Slip Op 51595[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Defendant failed to provide any expert testimony (see Healy v Finz & Finz, P.C., 82 AD3d 704, 706 ; Northrop v Thorsen, 46 AD3d 780, 782 ) or to otherwise substantiate her claim of legal malpractice. In this circumstance, we find no basis to disturb the Civil Court’s implicit conclusion that defendant did not establish a failure by plaintiff “to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [defendant] to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442  [internal quotation marks omitted]).”