SUSAN I. KETTNER
Stephen H. Hansen. Esq., New Rochelle, attorney(s) for petitioner. Rhonda Root, pro se.
SUSAN I. KETTNER, J.
In this commercial small claims proceeding, plaintiff attorney sues for legal fees in the amount of $3,010.00 for services rendered to defendant's children, pursuant to court order. Defendant counterclaimed in the amount of $3,750.00, alleging that plaintiff failed to provide “proper legal services as outlined in the Court Order appointing attorney for the children ...” A trial was held on October 4, 2012.
Plaintiff promptly raised the jurisdictional issue that defendant lacked standing to bring a counterclaim for malpractice because defendant never represented plaintiff, but represented plaintiff's children. The court made a ruling as to this threshold issue, dismissing the counterclaim based upon the absence of any attorney-client relationship. In the Matter of TM A Child Under the Age of Eighteen Alleged to be Neglected y TM MM, 19 Misc.3d 1113(A), 2008 WL 880192 (N.Y.Fam.Ct.); Drummond v. Drummond, 291 A.D.2d 368, 737 N.Y.S.2d 628 (2d Dept 2002). The original claim remained and the credible testimony adduced at trial demonstrated the following:
Plaintiff attorney was appointed to represent the children of defendant and her then husband in Family Court by Family Court Judge, Kathie Davidson. Plaintiff's representation was ongoing and continued through the Supreme Court proceeding, constituting the approximate time frame of July, 2009 through February, 2012. Plaintiff credibly testified that the original Order of Appointment provided that defendant bear 50% of the cost of plaintiff's representation of the couple's children. The children's father was obligated to pay and did, in fact, pay his 50% portion of the bill. Plaintiff further testified that she submitted bills to defendant on a periodic basis, indicating that defendant had already paid plaintiff $3,750.00, leaving an amount due and owing of $3,010.00. Defendant did not object to the periodic bills sent by plaintiff and there was no correspondence from defendant's attorney regarding the bill. Defendant refused to pay the balance of $3,010.00. Though not relevant here, the plaintiff acknowledged that she could have proceeded in Supreme Court for contempt but elected the Small Claims route to obtain payment.
As defendant was unable to rebut plaintiff's claim with any credible evidence, the court awards judgment to plaintiff the amount of $3,010.00.
This constitutes the Decision and Order of the Court.
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