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Donna M. Tortorella v. Howard B. Arber

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


February 16, 2012

DONNA M. TORTORELLA,
RESPONDENT,
v.
HOWARD B. ARBER,
APPELLANT.

Appeal from a judgment of the District Court of Nassau County, Second District (Gary Franklin Knobel, J.), entered October 6, 2010.

Tortorella v Arber

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2012

PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $1,750.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover from defendant, her former attorney, amounts she allegedly overpaid for legal services which, she claims, her attorney never performed. After a non-jury trial, the District Court awarded her the principal sum of $1,750.

Our review is limited to determining whether "substantial justice has not been done between the parties according to the rules and principles of substantive law" (UDCA 1807). The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as the 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 [1991]). The deference accorded to a trial court's credibility determinations applies with even greater force to judgments rendered in the Small Claims Part of the court, given the limited standard of review (see UDCA 1807; Williams v Roper, 269 AD2d 125 [2000]).

In order to ascertain whether an attorney-client relationship exists, a court must look to the words and actions of the parties (see 6A NY Jur 2d, Attorneys at Law § 68). The District Court determined that there was such a relationship with respect to defendant's representation of plaintiff as a respondent in an appeal in a prior small claims action plaintiff had instituted, and on her motion to vacate a prior neglect disposition in the Family Court. The court was then required to determine whether defendant had properly earned his fees (see Beech v Gerald B. Lefcourt, P.C., 12 Misc 3d 1167[A], 2006 NY Slip Op 51092[U] [Civ Ct, NY County 2006]).

As a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients (see Jacobson v Sassower, 66 NY2d 991, 993 [1985]), and even where it is the client who commences an action to recover a portion of the attorney's fees paid, it is the attorney who must shoulder the burden of demonstrating the fair and reasonable value of the services rendered (id.; see also Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 64 [2007]). In the instant case, plaintiff submitted to the court her cancelled checks made out to defendant to pay for what she believed was his representation of her in the above-referenced matters. Defendant was unable to offer to the court any written documentation showing the parties' understanding of the nature of the services to be provided, or any clear itemization of the time he spent on the matters undertaken.

In view of the foregoing, we find that the judgment in favor of plaintiff rendered substantial justice between the parties according to the rules and principles of substantive law (UDCA 1807). Accordingly, the judgment is affirmed.

Molia, J.P., Nicolai and Iannacci, JJ., concur. Decision

Date: February 16, 2012

20120216

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