Gregory C. Thomas, Respondent,
Jeffrey T. Jordan, Doing Business as Tracr Consulting, LLC, Appellant.
Jeffrey T. Jordan d/b/a Tracr Consulting, LLC, appellant pro
Gregory C. Thomas, respondent pro se (no brief filed).
PRESENT THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT, JERRY
from a judgment of the City Court of Beacon, Dutchess County
(Rebecca S. Mensch, J.), entered June 13, 2018. The judgment,
after a nonjury trial, awarded plaintiff the principal sum of
that the judgment is affirmed, without costs.
small claims breach of contract action, plaintiff seeks to
recover the sum of $5, 000 representing the payment he made
to defendant for work which defendant allegedly never
nonjury trial, plaintiff testified that he had hired
defendant for assistance in settling a debt that plaintiff
owed to the Internal Revenue Service (IRS). The parties
entered into a letter of engagement on March 13, 2017, which
provided, with respect to plaintiff's obligations, that
plaintiff was to pay a $5, 000 retainer fee and would
promptly reply to any communication from defendant and
promptly file requested forms and documents. The letter also
provided that "All flat fee retainer fees are
non-refundable. Hourly retainer fees will be refunded based
upon hours worked." Plaintiff believed that the retainer
fee was one in which defendant would bill his hourly rate
against the retainer amount. Plaintiff paid defendant $5, 000
as a retainer for defendant's services and, as of
December 2017, had provided defendant with requested tax
returns, financial documents and a power of attorney.
Defendant, however, never contacted the IRS and terminated
his representation of plaintiff, but failed to refund
plaintiff's money. Defendant claimed that plaintiff had
breached the contract by failing to furnish him with
requested documents in a timely fashion and that the
agreement entered into provided that the retainer was a
flat-fee, non-refundable retainer. As a result, defendant had
no itemized bill with respect to any work performed.
the trial, a judgment was entered awarding plaintiff the
principal sum of $5, 000. The City Court found that the
letter of engagement was vague and misleading, and could
reasonably be interpreted by plaintiff to provide for a
refund of that portion of the retainer fee not billed against
by defendant. The court further found that defendant had
failed to submit credible evidence of time spent on
plaintiff's case, especially in the absence of any record
or any communication with the IRS on plaintiff's behalf.
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 A.D.2d 584');">269 A.D.2d 584 ; Williams
v Roper, 269 A.D.2d 125');">269 A.D.2d 125 ). 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 A.D.2d 564');">184 A.D.2d 564 ; Kincade v Kincade,
178 A.D.2d 510');">178 A.D.2d 510 ). This deference applies with greater
force to judgments rendered in the small claims part of the
court (see Williams v Roper, 269 A.D.2d at 126).
cases of ambiguity, a contract must be construed most
strongly against the party that prepared it, and favorably to
a party that had no voice in the selection of its language
(see Lai Ling Cheng v Modansky Leasing Co., 73
N.Y.2d 454 ; 67 Wall Street Co. v Franklin Natl.
Bank, 37 N.Y.2d 245');">37 N.Y.2d 245 ). "In choosing among
reasonable meanings of a promise or agreement or a term
thereof, that meaning is generally preferred which operates
against the party who supplies the words or from whom a
writing otherwise proceeds" (Restatement [Second] of
Contracts Â§ 206; see also Rentways, Inc. v
O'Neill Milk & Cream Co., 308 NY 342 ). A
contract is ambiguous when its terms are reasonably
susceptible to two or more interpretations (see Diodata v
Eastchester Dev. Corp., 111 A.D.2d 303');">111 A.D.2d 303 ).
the court determined that the letter of engagement was vague
and ambiguous, as the letter did not state clearly whether
the retainer was a flat fee and nonrefundable, or an hourly
retainer which was refundable in excess of hours billed.
Consequently, as defendant drafted the agreement, the
contract was to be construed favorably to plaintiff, i.e.,
that it was an hourly retainer (see Computer Assoc.
Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 A.D.3d 699');">10 A.D.3d 699
). The court further found that defendant's
estimation of the time he claimed he had worked on
plaintiff's case was not credible and that there was no
other evidence to establish the hours defendant had worked.
Indeed, there was no correspondence submitted between
defendant and the IRS, and no negotiated debt reduction or
revised payment plan to the IRS. In view of the foregoing,
the City Court's conclusion that the retainer did not
call for a nonrefundable flat fee and that, under the
circumstances, plaintiff was entitled to recover his full
payment, was not so clearly erroneous as to deny substantial
justice (see UCCA 1804, 1807; Tranquility Salon
& Day Spa, Inc. v Caira, 141 A.D.3d 711');">141 A.D.3d 711 ).
remaining contention is unpreserved for appellate review.
the judgment is affirmed.
P.J., TOLBERT and ...