Deborah D. Clegg, P.C. v Root

[*1] Deborah D. Clegg, P.C. v Root 2012 NY Slip Op 52296(U) Decided on October 12, 2012 New Rochelle City Ct Ketter, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2012
New Rochelle City Ct

Deborah D. Clegg, P.C., Plaintiff,

against

Rhonda Root, Defendant,



CC 1783-12



STEPHEN H. HANSEN. ESQ..

277 North Avenue, Suite 200

New Rochelle, NY 10801

Attorney(s) for Petitioner

RHONDA ROOT

Susan I. Ketter, J.

In this commercial small claims proceeding, plaintiff attorney sues for legal fees in the amount of $3,010.00 for services rendered to defendant's children, pursuant to court order. Defendant counterclaimed in the amount of $3,750.00, alleging that plaintiff failed to provide "proper legal services as outlined in the Court Order appointing attorney for the children..." A trial was held on October 4, 2012.

Plaintiff promptly raised the jurisdictional issue that defendant lacked standing to bring a counterclaim for malpractice because defendant never represented plaintiff, but represented plaintiff's children. The court made a ruling as to this threshold issue, dismissing the counterclaim based upon the absence of any attorney-client relationship. In the Matter of TM A Child Under the Age of Eighteen Alleged to be Neglected y TM MM, 19 Misc 3d 1113(A), 2008 WL 880192 (NY. Fam. Ct); Drummond v. Drummond, 291 AD2d 368 (2d Dept 2002).The original claim remained and the credible testimony adduced at trial demonstrated the following:

Plaintiff attorney was appointed to represent the children of defendant and her then husband in Family Court by Family Court Judge, Kathie Davidson. Plaintiff's representation was ongoing and continued through the Supreme Court proceeding, constituting the approximate time frame of July, 2009 through February, 2012.. Plaintiff credibly testified that the original Order of Appointment provided that defendant bear 50% of the cost of plaintiff's representation of the couple's children. The children's father was obligated to pay and did, in fact, pay his 50% portion of the bill. Plaintiff further testified that she submitted bills to defendant on a periodic basis, indicating that defendant had already paid plaintiff $3,750.00, leaving an amount due and [*2]owing of $3,010.00.. Defendant did not object to the periodic bills sent by plaintiff and there was no correspondence from defendant's attorney regarding the bill. Defendant refused to pay the balance of $3,010.00. Though not relevant here, the plaintiff acknowledged that she could have proceeded in Supreme Court for contempt but elected the Small Claims route to obtain payment.

As defendant was unable to rebut plaintiff's claim with any credible evidence, the court awards judgment to plaintiff the amount of $3,010.00.

This constitutes the Decision and Order of the Court.

Dated: New Rochelle, New York

October 12, 2012

SUSAN I. KETTNERCity Court Judge