Adams v Shaughnessy

[*1] Adams v Shaughnessy 2010 NY Slip Op 52016(U) [29 Misc 3d 136(A)] Decided on November 19, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 19, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., LaCAVA and IANNACCI, JJ
2009-1601 D C.

Joseph E. Adams, Sr., Appellant,

against

Edward Shaughnessy, Respondent.

Appeal from a judgment of the Justice Court of the Village of Millbrook, Dutchess County (Louis M. Prisco, J.), entered July 2, 2009. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered in favor of plaintiff in the principal sum of $1,000.

In this small claims action, plaintiff seeks to recover the $1,000 retainer he paid defendant, a neighbor operating a legal consulting firm, to prepare an appellate brief for submission to the Appellate Division, Second Department. At the nonjury trial, defendant submitted a worksheet reflecting that he had spent several hours discussing the issues involved in the underlying case with plaintiff and reviewing documents, but he did not prepare an appellate brief. Following the trial, the Justice Court dismissed plaintiff's action.

Generally, appellate review of a small claims judgment is limited to determining whether substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807; see Moses v Randolph, 236 AD2d 706, 707 [1997]; see also Ross v Friedman, 269 AD2d 584 [2000]), and the deference normally accorded to the credibility determinations of a trial court applies with greater force" in small claims proceedings (see Williams v Roper, 269 AD2d 125 [2000]). However, reversal may be warranted when the trial court's conclusions are so clearly erroneous as to deny substantial justice (see Salvia v Dyer, 21 Misc 3d 140[A], 2008 NY Slip Op 52359[U] [App Term, 9th & 10th Jud Dists 2008]; Payne v Biglin, 2 Misc 3d 127[A], 2003 NY Slip Op 51694[U] [App Term, 9th & 10th Jud Dists 2003]).

A party may seek to recover a fee already paid, if it appears that the services were not properly earned. Here, defendant failed to perform the contracted-for services. Consequently, the judgment failed to render substantial justice between the parties in accordance with the rules and principles of substantive law (see UJCA 1807). Accordingly, the judgment is reversed and [*2]judgment is directed to be entered in favor of plaintiff in the principal sum of $1,000.

Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: November 19, 2010