Harris v Faga Savino, LLP

[*1] Harris v Faga Savino, LLP 2015 NY Slip Op 50911(U) Decided on June 11, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., GARGUILO and CONNOLLY, JJ.
2014-812 W C

Guy Harris, Appellant,

against

Faga Savino, LLP, Respondent.

Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Helen M. Blackwood, J.), entered November 29, 2011. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

On July 5, 2011, plaintiff and defendant law firm entered into a retainer agreement which stated that defendant was being retained to conduct an investigation and research into plaintiff's "family law/child support matters, and not to initiate or represent [him] in any litigation or administrative actions." Following defendant's investigation, defendant concluded that a child support order had been entered against plaintiff in the state of Virginia, which was the proper forum to litigate plaintiff's child support obligations. As no one in the law firm was admitted to practice law in that state, plaintiff was advised by defendant to seek counsel in Virginia. Plaintiff commenced this small claims action to recover the initial $3,500 retainer fee he had paid to defendant.

Although plaintiff sought to recover the entire $3,500 amount paid to defendant, plaintiff admitted, during the course of the nonjury trial, that, after the commencement of the action, he had received from defendant a refund of $2,204, in the form of two checks, which he had deposited into his bank account. As to the remaining $1,296, the defense witness, the attorney who handled the matter for defendant law firm, testified that he had explained to plaintiff, at the time of their initial meeting, that the law firm had been retained solely for the purposes of investigation and research, and not for the purpose of litigation. He submitted itemized statements to the court detailing the services defendant had rendered to plaintiff and the amounts charged therefor, and indicating that the law firm had applied $1,296 of the retainer fee it had received to the work performed on plaintiff's behalf.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UCCA 1807; see UCCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, 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 Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

As the record supports the City Court's determination that plaintiff did not establish his [*2]entitlement to any further refund from defendant, we find no reason to disturb the judgment. Consequently, we conclude that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see UCCA 1804, 1807).

Accordingly, the judgment is affirmed.

Tolbert, J.P., Garguilo and Connolly, JJ., concur.

Decision Date: June 11, 2015