Halk v Aloi

[*1] Halk v Aloi 2015 NY Slip Op 50495(U) Decided on March 30, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., SOLOMON and ELLIOT, JJ.
2013-2490 RI C

Carolyn M. Halk, Respondent,

against

Virginia Aloi, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 5, 2013. The judgment, entered pursuant to a decision of the same court dated January 23, 2013, after a nonjury trial, awarded plaintiff the principal sum of $15,507.30.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated January 23, 2013 is deemed a premature notice of appeal from the judgment entered February 5, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

Plaintiff, an attorney, brought this action, based on breach of contract, account stated and quantum meruit, to recover the sum of $15,507.30 for legal services rendered to defendant, a former client whom plaintiff had represented in a matrimonial action. After a nonjury trial at which both parties testified, the Civil Court, in a decision dated January 23, 2013, determined that plaintiff had demonstrated that defendant was indebted to her in the sum of $15,507.30. Defendant appeals from the decision. A judgment in favor of plaintiff in the principal sum of $15,507.30 was subsequently entered on February 5, 2013, from which we deem the appeal to have been taken (see CPLR 5520 [c]).

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]). We find that the record amply supports the Civil Court's determination, which rested in large part on the credibility of the two testifying witnesses.

An attorney is not precluded from seeking, from his or her client, counsel fees, charged pursuant to a retainer agreement, that are greater than the amount granted to the client or the attorney by the court in a matrimonial action, pursuant to Domestic Relations Law § 237 (a) (see Joel R. Brandes, P.C. v Ferraro, 257 AD2d 610 [1999]; Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C237:1, at 12; see also Seth [*2]Rubenstein, P.C. v Ganea, 41 AD3d 54, 65 [2007]). Thus, contrary to defendant's contention, plaintiff was not precluded from commencing this action to recover the balance due from defendant notwithstanding a prior order in the matrimonial action awarding pendente lite relief of $10,000 in counsel fees in the matrimonial action.

Although defendant contends on appeal that the complaint should have been dismissed because plaintiff did not comply with defendant's notice for discovery and inspection, defendant made no motion in the Civil Court either to compel compliance, pursuant to CPLR 3124, or to preclude or dismiss, pursuant to CPLR 3126.

The record supports the determination of the Civil Court, based upon its assessment of the credibility of the witnesses and the proof adduced at trial, that plaintiff established her claim for breach of contract. Plaintiff demonstrated the existence of a written retainer agreement, executed by the parties, wherein defendant agreed to pay plaintiff the hourly rate set forth therein in consideration of plaintiff's performance of legal services in the matrimonial action. Plaintiff's itemized billing statements showed that plaintiff had performed legal services in the matrimonial action and the amount of time spent on each service; that the amounts charged were in accordance with the rates agreed upon in the retainer agreement; and that there remained a balance due of $15,507.30. Defendant acknowledged that, during the course of plaintiff's representation, defendant had continually owed money to plaintiff and that plaintiff had continued to provide legal services to her despite her failure to compensate plaintiff for the outstanding balance.

Accordingly, the judgment is affirmed.

Weston, J.P., Solomon and Elliot, JJ., concur.

Decision Date: March 30, 2015