Beizer v Siller

[*1] Beizer v Siller 2009 NY Slip Op 52058(U) [25 Misc 3d 127(A)] Decided on October 6, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 6, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2008-1396 Q C.

Harriet Beizer, Appellant,

against

Sidney Siller, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered September 7, 2007. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered awarding plaintiff the principal sum of $1,107.10.

In this small claims action, plaintiff seeks to recover for stenographic services rendered to defendant, an attorney. At the nonjury trial, plaintiff conceded that she had commenced several prior actions against defendant to recover for stenographic services. The Civil Court dismissed the instant action on the ground that plaintiff had split her cause of action for said services and that plaintiff was thus barred from commencing the instant action.

The evidence adduced at trial established that plaintiff had not sought to recover the payments demanded in this action in any of the prior actions. When more than one installment is due upon a single contract, the claims for all installments then due are merged into a single cause of action and must be included in a single action (Swiss Hamlet Homeowners Assoc., Inc. v Souza, 13 Misc 3d 87, 88 [App Term, 9th & 10th Jud Dists 2006]). However, the services sued upon in the prior actions were based on contracts separate and distinct from those involved herein, for which defendant was billed separately. Accordingly, plaintiff's instant action is not barred. As defendant did not dispute that the stenographic services were rendered on his behalf, and there is no showing of any payment therefor, the Civil Court's determination did not render [*2]substantial justice between the parties (CCA 1807). Accordingly, the judgment is reversed and judgment is directed to be entered in favor of plaintiff in the principal sum of $1,107.10.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: October 06, 2009