Opinion
No. 2011–1998KC.
2012-06-28
Stanislav C. FILATOV, Appellant, v. INNA FERSHTEYN AND ASSOCIATES, P.C. and Inna Fershteyn, Respondents.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered November 9, 2010. The judgment, insofar as appealed from as limited by the brief, after a nonjury trial, dismissed plaintiff's cause of action against defendant Inna Fershteyn and Associates, P.C. and awarded defendant Inna Fershteyn the principal sum of $3,039 on her counterclaim.
Present: WESTON, J.P., PESCE and ALIOTTA, JJ.
ORDERED that the judgment, insofar as appealed from, is modified by striking the provision awarding defendant Inna Fershteyn the principal sum of $3,039 on her counterclaim and by remitting the matter to the Civil Court for a new trial on the counterclaim; as so modified, the judgment, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this small claims action against the law firm of Inna Fershteyn and Associates, P.C. and against Inna Fershteyn, individually, seeking damages for defendants' alleged legal malpractice in their representation of plaintiff in a landlord-tenant proceeding. Defendant Inna Fershteyn, individually, counterclaimed to recover the unpaid portion of the legal fees which had been incurred during the representation of plaintiff in that underlying matter. After a nonjury trial, the Civil Court dismissed plaintiff's causes of action against defendant Inna Fershteyn and defendant Inna Fershteyn and Associates, P.C., and awarded defendant Inna Fershteyn the principal sum of $3,039 on her counterclaim. Plaintiff appeals, as limited by his brief, from so much of the judgment as dismissed his cause of action against defendant Inna Fershteyn and Associates, P.C. and as awarded defendant Inna Fershteyn the principal sum of $3,039 on her counterclaim.
The standard of review on an appeal of a small claims judgment is whether “substantial justice has ... been done between the parties according to the rules and principles of substantive law” (CCA 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 A.D.2d 824 [1998];Richard's Home Ctr. & Lbr. v. Kraft, 199 A.D.2d 254 [1993] ), and the decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that its determination could not have been reached under any fair interpretation of the evidence ( see Claridge Gardens v. Menotti, 160 A.D.2d 544 [1990] ). The deference normally accorded to the credibility determinations of a trial court “applies with greater force” to judgments rendered in the Small Claims Part of the court, given the limited scope of review ( see Williams v. Roper, 269 A.D.2d 125, 126 [2000] ).
In the instant case, the Civil Court apparently found defendants' version of the facts to be more credible than plaintiff's version, and no reason is shown for this court to disturb the Civil Court's factual determination in this regard. Thus, the Civil Court properly found that plaintiff had failed to establish a prima facie case of legal malpractice against defendant Inna Fershteyn and Associates, P.C., i.e., that defendant Inna Fershteyn and Associates, P.C. had failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that the breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007];Leone v. Silver & Silver, LLP, 62 AD3d 962 [2009];Fireman's Fund Ins. Co. v. Farrell, 57 AD3d 721, 722 [2008] ), and that he would have prevailed in the underlying proceeding but for defendant's negligence ( see Walker v. Glotzer, 79 AD3d 737 [2010];Carrasco v. Pena & Kahn, 48 AD3d 395 [2008] ). Consequently, we find that so much of the judgment as dismissed plaintiff's cause of action against defendant Inna Fershteyn and Associates, P.C. rendered substantial justice between the parties according to the rules and principles of substantive law ( see CCA 1804, 1807).
We note that, during the course of the trial, the Civil Court apparently considered several documents regarding defendant Inna Fershteyn's counterclaim to recover the unpaid portion of legal fees incurred during the representation of plaintiff. However, some of the documents which the Civil Court considered in support of the counterclaim were not marked as exhibits and were not made part of the record on appeal. In the absence of a complete record, this court is unable to determine whether it was appropriate for the Civil Court to find in favor of defendant Inna Fershteyn and to award her the principal sum of $3,039 on her counterclaim. Accordingly, we modify the judgment by striking the provision awarding defendant Inna Fershteyn the principal sum of $3,039 on the counterclaim and remitting the matter to the Civil Court for a new trial thereon.