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Anthony Smith v. Robert L. Weinstein

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


May 26, 2011

ANTHONY SMITH,
APPELLANT-RESPONDENT,
v.
ROBERT L. WEINSTEIN,
RESPONDENT-APPELLANT.

Appeal, on the ground of inadequacy, and cross appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 11, 2010.

Smith v Weinstein

Decided on May 26, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT:PESCE, P.J., GOLIA and STEINHARDT, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,050 and dismissed the counterclaim.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.

Plaintiff commenced this small claims action to recover a $3,500 deposit from defendant, his former attorney, who had represented him in a criminal case. Plaintiff claimed that he was entitled to the $3,500 because he had paid defendant this amount for defendant's representation at trial, and the case had been dismissed prior to trial. Defendant counterclaimed to recover his fees, in the sum of $1,390, for the legal services he had rendered in excess of the amount paid to him by plaintiff. After a non-jury trial, the Civil Court awarded plaintiff the sum of $1,050 and dismissed the counterclaim. Plaintiff appeals on the ground of inadequacy, and defendant cross-appeals.

We note at the outset that defendant was not sworn before he testified. Proper procedure in the Small Claims Part requires that an oath or affirmation be administered to all witnesses (see Uniform Rules for New York City Civ Ct [22 NYCRR] § 208.41 [j]), regardless of profession or affiliation to the court system (see McKay v Vita, 24 Misc 3d 133[A], 2009 NY Slip Op 51390[U] [App Term, 9th & 10th Jud Dists 2009]; Trensky v Johnson, 1 Misc 3d 50 [App Term, 1st Dept 2003]). Moreover, although a written retainer agreement as well as various billing records were purportedly submitted to the court, they were not adequately described in the record and were not received into evidence. Consequently, given the inadequate state of the record, substantial justice (see CCA 1804, 1807) requires that this matter be tried anew.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.

Pesce, P.J., Golia and Steinhardt, JJ., concur.

Decision Date: May 26, 2011

20110526

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