Hidalgo v Campos

[*1] Hidalgo v Campos 2018 NY Slip Op 51747(U) Decided on November 29, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2017-622 S C

Rosa Hilda Hidalgo, Respondent,

against

Victoria Campos, Appellant.

James S. Gentile, Esq., for appellant. Rosa Hilda Hidalgo, respondent pro se (no brief filed).

Appeal from a decision of the District Court of Suffolk County, Fourth District (James F. Matthews, J.), dated September 27, 2016, deemed from a judgment of that court entered March 15, 2017 (see CPLR 5512). The judgment, upon the decision, after a nonjury trial, awarded plaintiff the principal sum of $3,000.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial limited to the issue of the amount due defendant as a setoff, based on a determination of the value of the work defendant performed on behalf of plaintiff.

Claiming that defendant, an attorney, had not performed any services on her behalf, plaintiff commenced this small claims action to recover a $3,000 attorney's fee she had paid to defendant. At a nonjury trial, it was established that, on December 14, 2015, plaintiff, who had previously been represented by a different attorney, had retained defendant to represent her in connection with an asylum hearing that was scheduled to be held at a United States Immigration Court on January 7, 2016. The agreed-upon fee for the representation was $5,500, of which plaintiff paid $3,000. On or about January 5, 2016, plaintiff discharged defendant and retained a different attorney to represent her at the Immigration Court hearing. On January 7, 2016, plaintiff appeared at the Immigration Court hearing with her new attorney, who filed a notice of appearance with the Immigration Court.

In refutation of plaintiff's claim that defendant had failed to provide services, defendant [*2]testified that, in connection with her representation of plaintiff, she had traveled to obtain records from plaintiff's prior attorney, had spoken with plaintiff in person and by telephone, and had prepared legal papers, which she had submitted to the Immigration Court. Defendant explained that an attorney from her office had appeared at the Immigration Court on January 7, 2016 because, as of that date, defendant had not yet been formally relieved as plaintiff's attorney, and because she had no knowledge as to whether the papers had yet been filed that were required in order for substituted counsel to appear on plaintiff's behalf in Immigration Court. On January 7, 2016, her office turned over the files pertaining to plaintiff's asylum case to plaintiff's new attorney. Defendant's evidence included, among other things, a Spanish-language retainer agreement dated December 14, 2015, signed by plaintiff; an I-589 application for asylum and for withholding of removal, which defendant stated that she had prepared for plaintiff; and a statement by plaintiff concerning her reasons for seeking asylum, which defendant had translated into English for submission to the Immigration Court.

Following the trial, the District Court awarded judgment to plaintiff in the principal sum of $3,000, upon a finding that defendant had failed to provide a letter of engagement or to submit any evidence which would support an award to defendant based on quantum meruit.

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" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]).

The parties' agreement, although not determinative of the value of defendant's services, demonstrated that the parties had initially agreed that plaintiff would pay defendant $5,500 to prepare plaintiff's asylum application and to represent her at the Immigration Court hearing, and the evidence showed that defendant had prepared and submitted papers to the Immigration Court in preparation for the hearing and had represented plaintiff until two days prior thereto. In this circumstance, we conclude that the District Court's conclusion that defendant was not entitled to retain any portion of the retainer plaintiff had paid to her failed to render substantial justice between the parties (see UDCA 1804, 1807).

Accordingly, the judgment is reversed and the matter is remitted to the District Court for a new trial limited to the issue of the amount due as a setoff against the $3,000 plaintiff paid defendant, based on a determination of the value of the work defendant performed on behalf of plaintiff.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018