Tischler v Aber

[*1] Tischler v Aber 2005 NY Slip Op 50087(U) Decided on February 1, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 1, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-47 K C

Regina Tischler, Appellant,

against

M. Joshua Aber, Respondent.

Appeal by plaintiff from a judgment of the Civil Court, Kings County (E. Spodek, J.), entered October 2, 2003, in favor of defendant dismissing the complaint.

Judgment unanimously affirmed without costs.

It is well settled that issues of credibility are properly determined by the trier of fact, who saw and heard the witnesses, and its decision will not be disturbed on appeal if it is supported by a fair interpretation of the evidence (see Jones v Hart, 233 AD2d 297 [1996]; DiSalvo v Ordway, 208 AD2d 798 [1994]).

While a formal retainer agreement is not essential to the formation of an attorney-client relationship, a court may look at the words and actions of the parties in order to determine whether there was an explicit undertaking to render services such as would demonstrate the existence of such a relationship (see C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [1995]; see also Rann v Lerner, 160 AD2d 922 [1990]). The payment of a fee does not necessarily establish an attorney-client relationship (see Jane St. Co. v Rosenberg & Estis, 192 AD2d 451 [1993]), nor does a plaintiff's unilateral beliefs and actions confer upon him or her the status of client (see Wei Cheng Chang v Pi, 288 AD2d 378 [2001]).

A review of the record supports the trial court's determination that defendant had a retainer agreement with a Mr. Blisko, that he performed legal services on behalf of said Mr. Blisko, and that plaintiff's payment to defendant was to cover legal fees for the representation of Mr. Blisko. There is nothing in the trial record to indicate that defendant either affirmatively led [*2]plaintiff to believe that he was acting on her behalf or that he knowingly permitted her to proceed under this misconception (see Jane St. Co. v Rosenberg & Estis, 192 AD2d 451, supra). Moreover, plaintiff had no standing to recover the $2,500 allegedly paid by her son to defendant.
Decision Date: February 01, 2005