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Maron J. Vaccarella v. David M. Sperling

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


August 7, 2012

MARON J. VACCARELLA, RESPONDENT,
v.
DAVID M. SPERLING,
APPELLANT.

Appeal from a decision of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), dated February 7, 2011, deemed from a judgment of the same court entered February 7, 2011 (see CPLR 5512 [a]).

Decided on August 7, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: MOLIA, J.P., IANNACCI and LaSALLE, JJ

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $2,300.

ORDERED that the judgment is modified by reducing the award in favor of plaintiff to the principal sum of $1,600; as so modified, the judgment is affirmed, without costs.

In this small claims action arising out of a fee dispute between attorneys, plaintiff seeks to recover the sum of $2,900, alleging that he is entitled to $1,600 for the legal work he performed on two of defendant's cases, $700 for a case that he had "signed up" for defendant, and $600 for his expenses in attempting to collect the aforementioned amounts from defendant. At a non-jury trial, plaintiff testified that he had entered into an oral agreement with defendant regarding compensation for legal work and "sign-ups" of clients for defendant. Defendant testified that there had been no such agreement, and that any work plaintiff had been doing was during a "trial period," which was terminated after defendant determined that plaintiff's work was unsatisfactory. The District Court credited plaintiff's version of the events and, finding that plaintiff was not entitled to the $600 he sought for his collection expenses, awarded plaintiff $2,300. A judgment was then entered in favor of plaintiff in the principal sum of $2,300.

Our review of this small claims action is limited to determining whether substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1807). Resolution of issues of credibility is for the trier of fact, as it had the opportunity to observe and evaluate the testimony and demeanor of the witnesses (see McGuirk v Mugs Pub, 250 AD2d 824 [1998]; Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]). The deference normally accorded to the credibility determinations of a trial court applies with greater force in small claims proceedings, given the limited scope of review (see Williams v Roper, 269 AD2d 125, 126 [2000]).

The District Court apparently found plaintiff's version of the facts to be more credible than defendant's, and we find no reason to disturb the District Court's determination in this regard, particularly since defendant admitted that plaintiff had worked on two of the cases which, plaintiff alleges, were the subject of the parties' oral compensation agreement. Accordingly, the District Court properly awarded plaintiff $1,600 as compensation for plaintiff's work on those two cases. However, to the extent that plaintiff contended that defendant owed him $700 for a third case that he "signed up" for defendant, plaintiff did not testify or otherwise offer any evidence to demonstrate that he had performed any legal work on this case. In the absence of a showing that the "sign-up" fee was more than a referral fee, enforcement of that portion of the parties' agreement would violate rule 1.5 (g) of the Rules of Professional Conduct (12 NYCRR 1200.0). Accordingly, substantial justice (UDCA 1804, 1807) requires that the judgment be modified by reducing the amount awarded to plaintiff by $700 to the principal sum of $1,600.

Molia, J.P. and Iannacci, J., concur.

LaSalle, J., taking no part. Decision Date: August 07, 2012

20120807

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