Fernandez v Atias

[*1] Fernandez v Atias 2015 NY Slip Op 51864(U) Decided on December 22, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Ling-Cohan, JJ.
570898/15

Primitivo Fernandez, Plaintiff-Appellant,

against

Sharon Atias, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered on or about February 6, 2015, after inquest, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Gerald Lebovits J.), entered on or about February 6, 2015, affirmed, without costs.

The record establishes that the inquest court applied the appropriate rules and principles of substantive law and accomplished "substantial justice" (CCA 1804, 1807) in rejecting plaintiff's claim seeking a full refund of the retainer previously paid to defendant for legal services and dismissing the within small claims action for lack of proof. Where there has been a default in appearing or answering and an inquest is directed, it is still necessary to present proof of damages (see Paulson v Kotsilimbas, 124 AD2d 513, 514 [1986][even in the case of a default upon inquest and assessment, plaintiff is required to prove the actual damages sustained]). Absent from the record was any credible evidence showing that defendant-attorney, who appeared at three proceedings in various courts on behalf of plaintiff, failed to earn the $4800 retainer sum already paid.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: December 22, 2015