Opinion
Index No. CV-000104-23NY
07-17-2023
Gayner, Plaintiff(s), v. Umanskaya and Tserkovnyuk, Defendant(s).
Plaintiff's counsel: Ehrlich Gayner LLP Pro se Defendants
Unpublished Opinion
Plaintiff's counsel: Ehrlich Gayner LLP
Pro se Defendants
WENDY CHANGYONG LI, J.
Background
Plaintiff commenced the instant action (" Action 2 ") against Defendant by filing Summons and a Verified Complaint (" Complaint ") on January 4, 2023 seeking money damage in the amount of $50,000.00 for unpaid legal fees in the amount of $6,045.13, plus interest, costs and additional damages (including "but not limited to, an increase in insurance rates, legal expenses, costs, activities related to document preparation, trial, discovery and communication" totaling "approximate amount of $35,000") (Complaint at 3,4). Pro se Defendant Umanskaya filed an answer (" Answer ") on January 26, 2023 stating that she initiated a lawsuit first against Plaintiff in the Small Claims Court on November 17, 2022 with index number SC-002333-22NY (" Action 1 ") for money damage in the amount of $9,000.00; that "when Mr. Gayner received the Summons he filed his own petition; and that [she did not] owe him money" (Answer at 1). Defendant Umanskaya also inserted her counterclaim in the amount of $50,000.00 against Plaintiff in the instant matter. Plaintiff filed a Notice of Motion and Affirmation and Memo in Support (" Motion to Consolidate ") on February 15, 2023 and May 22, 2023, seeking an order, pursuant to CPLR 602, to 1) consolidate Action 1 into Action 2 for joint discovery and trial; and 2) vacate any future court date scheduled for Action 1. Defendant failed to oppose and/or appear on June 22, 2023 after few adjournments granted for the benefit of the Defendant due to medical reasons. The Motion to Consolidate was submitted on default on June 22, 2023.
Discussion
CPLR 602 generally allows the court to consolidate actions for joint trials where "common question of law or fact are pending before a court" (CPLR 602[a]), if "a substantial right" of the opposing party will not be "prejudice[d]" (Brown v. Cope Bestway Express, Inc., 99 A.D.3d 746, 952 N.Y.S.2d 220; Viafax Corp. v Citicorp Leasing, Inc., 54 A.D.3d 846, 850, 864 N.Y.S.2d 479 [2d Dept 2008]; Littman v Jacobowski, 2 A.D.2d 898, 899, 156 N.Y.S.2d 957).
Plaintiff argued that Action 2 and Action 1 "related to the same family matter representation"; that the "parties [were] identical in both actions"; and that "relief sought by both parties [arose] from the same matter". Plaintiff explained that he was engaged by Defendant Umanskaya "as the second or third attorney she had in a family court matter that involved custody and parental access...[until Defendant] not wanting to pay lawyers anymore, decided to seek a court appointed attorney...[where Plaintiff] was relieved"; that Defendant Umanskaya eventually "lost custody of her child"; that Plaintiff was awarded unpaid legal fee by the ethics committee after he "submitted a fee dispute" for a hearing; and that Defendant Umanskaya responded by commencing Action 1 for "a refund of legal fees based upon the same Family matter." (Mot to Consolidate, Gayner Aff at 1, 2.)
It is well established that "small claims matters are subject to informal procedures which are designed to facilitate the handling of minor claims and grievances without resort to the use of counsel" (Moise v Brown, 99 A.D.3d 746. 952 N.Y.S.2d 220, 2012 NY App. Div. LEXIS 6744, citing Roundtree v Singh, 143 A.D.2d 995, 995, 533 N.Y.S.2d 609; see also Buonomo v Stalker, 40 A.D.2d 733, 733, 336 N.Y.S.2d 687). New York City Civil Court Act Section 1804 provides the following governing rules for Small Claims Court proceedings:
"The court shall conduct hearings upon small claims in such manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence, except statutory provisions relating to privileged communications and personal transactions or communications with a decedent or person with a mental illness. An itemized bill or invoice, receipted or marked paid, or two itemized estimates for services or repairs, are admissible in evidence and are prima facie evidence of the reasonable value and necessity of such services and repairs. Disclosure shall be unavailable in small claims procedure except upon order of the court on showing of proper circumstances. In every small claims action, where the claim arises out of the conduct of the defendant's business at the hearing on the matter, the judge or arbitrator shall determine the appropriate state or local licensing or certifying authority and any business or professional association of which the defendant is a member. The provisions of this act and the rules of this court, together with the statutes and rules governing supreme court practice, shall apply to claims brought under this article so far as the same can be made applicable and are not in conflict with the provisions of this article; in case of conflict, the provisions of this article shall control."(New York City Court Act § 1804.)
Although New York City Civil Court Act Section 1805(b) affords a court the authority to transfer small claims matters to "any other part of the court" (New York City Court Act § 1805[b]), "such a transfer 'should not prejudice the rights of the small claims claimant by imposing upon him the heavier burden in terms of the nature and degree of proof to make out a prima facie case.'" (Moise v Brown, 99 A.D.3d 746. 952 N.Y.S.2d 220, 2012 NY App. Div. LEXIS 6744, citing Victoria Kitchens, Inc. v Leiner, 138 Misc.2d 556, 560, 524 N.Y.S.2d 1019; Torres v Falk, 193 Misc.2d 428, 430-31, 751 N.Y.S.2d 349.)
In our instant matter, Pro se Defendant Umanskaya sought a refund of legal fees in the amount of $9,000 in Action 1 in the Small Claims Court of the Civil Court of the City of New York, County of New York, while Plaintiff sought the unpaid legal fee of $6,045.13, plus interest, costs and additional damages in the Civil Court of the City of New York, County of New York, by commencing Action 2. Even though Action 1 was filed before Action 2, Plaintiff sought to consolidate Action 1 into Action 2 so that document preparation, trial, discovery and communication can be proceeded together in the Civil Court rather in the Small Claims Court. Here, Defendant Umanskaya answered Plaintiff's Summons and Complaint in Action 2 pro se. If this Court were to grant the Motion to Consolidate and bring Action 1 from the Small Claims Court to the Civil Court to join Action 2, pro se Defendant Umanskaya would have to be subject to stringent rules on discovery in the Civil Court which is not required in the Small Claims Court. In addition, Defendant Umanskaya would have to bear a "heavier burden" to prove her case in the Civil Court (id.), which is in violation of the spirit of the New York City Court Act Section1804.
This Court notes that although Plaintiff in the instant matter has an opportunity to insert his counter claim in Action 1 where Defendant Umanskaya sought a refund of legal fees, Plaintiff nevertheless commenced the instant Action 2 for money damages of unpaid legal fee of $6,045.13, plus interest, other costs, fees, and reimbursements of proximately $44,000.00. Here, granting Plaintiff's Motion to Consolidate will not serve the interest of justice; and bringing Defendant Umanskaya's Small Claims Court matter to the Civil Court will prejudice pro se Defendant Umanskaya's "substantial right". (Brown v. Cope Bestway Express, Inc., 99 A.D.3d 746, 952 N.Y.S.2d 220; Viafax Corp. v Citicorp Leasing, Inc., 54 A.D.3d 846, 850, 864 N.Y.S.2d 479 [2d Dept 2008]; Littman v Jacobowski, 2 A.D.2d 898, 899, 156 N.Y.S.2d 957.)
Decision and Order
Accordingly, it is
ORDERED that Plaintiff's motion to consolidate index number SC-002333-22NY with this instant matter with index number CV-000104-23NY is denied in its entirety; and it is further
ORDERED that the pro se clerk is directed to reschedule SC-002333-22NY for trial on December 5, 2023 at 9:30am at the Small Claims Court and notify both parties; and it is further
ORDERED that the pro se clerk is directed to put the instant matter with index number CV-000104-23NY on Part 11 Calendar on December 5, 2023 at 11:00am for a pre-trial conference and notify both parties on the next court date.
This constitutes the Decision and Order of the Court.