Iyasere v Silberman Law Firm

[*1] Iyasere v Silberman Law Firm 2013 NY Slip Op 51663(U) Decided on October 11, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570548/13.

Sedgwick Iyasere, Plaintiff-Appellant,

against

Silberman Law Firm/Martin Silberman, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered December 6, 2012, which dismissed the action at the close of plaintiff's evidence.

Per Curiam.

Judgment (Joseph E. Capella, J.), entered December 6, 2012, reversed, without costs, and new trial ordered.

This small claims action, seeking to recover a refund of the retainer previously paid to the defendant law firm in connection with legal services defendant was hired to perform, was erroneously dismissed at the close of plaintiff's case. The court's unexplained dismissal of the action, to the extent it may have been based on a determination that some unspecified defect existed in plaintiff's trial proof, was procedurally flawed since it deprived plaintiff of the opportunity to remedy any perceived evidentiary shortcoming (see Ramsay v Miller, 202 NY 72, 76 [1911]). Nor does the dismissal fare better from a substantive standpoint. Accepted as true and accorded the benefit of every favorable inference (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), plaintiff's as yet unrebutted testimony that defendant failed to "do the work" contracted for and had agreed to "return [plaintiff's] money back," was sufficient to set forth a prima facie claim. In this posture, the ends of "substantial justice" (CCA 1807) require that the matter be tried anew.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 11, 2013