As a trial document, Outeda v Asensio 2021 NY Slip Op 51069(U) [73 Misc 3d 136(A)] Decided on November 5, 2021 Appellate Term, Second Department is a little surprising. It’s an attorney fee trial over $ 10,000. The decision catalogues what went wrong, some of it easily avoidable. Read both dissents in the full version.
“Plaintiff, who is an attorney, commenced this action seeking to recover the principal sum of $10,280, which, she alleged in the complaint, is the balance due for legal fees and disbursements based upon two separate retainer agreements she entered into with defendant: the first, to review materials, including “the court’s file,” concerning defendant’s mother’s legal guardian; and the second, to represent defendant in petitioning the Supreme Court, Queens County, pursuant to Mental Hygiene Law article 81, to remove the legal guardian for the person and property of defendant’s mother and to have defendant appointed to serve in that capacity instead. Defendant counterclaimed for $5,000, alleging legal malpractice and a failure to provide services.
At a nonjury trial, plaintiff testified that, after doing “a substantial amount of work,” she [*2]prepared a petition, which she ultimately did not file because she discovered that a petition had already been filed on defendant’s behalf by defendant’s prior attorney. Instead, she filed a notice of appearance. Plaintiff asserted that she then attended court conferences, communicated with the court-appointed guardian for defendant’s mother, and enabled visitation between defendant and her mother. Plaintiff testified that she had agreed to work for an hourly rate of $375. Plaintiff stated the number of hours of work she had performed and billed defendant for, which amount, together with $355 in costs and disbursements, totaled the sum of $15,280. Plaintiff noted that defendant had paid her $5,000, leaving a balance due of $10,280.
Defendant testified that plaintiff had justified her fees by claiming that she was an expert in the field of elder law, when in fact she was not, and asserted that she was entitled to a refund of the money she had paid to plaintiff because plaintiff had done nothing for her.
While no documents were formally admitted into evidence, in its findings dictated on the record after the trial, the Civil Court indicated that it had considered documentary evidence that had been presented by both parties. The court questioned whether plaintiff had proven she was an attorney, but found that even if she was, “she did not establish that she performed the legal services for which she was retained.” The court dismissed the complaint and awarded defendant a judgment of $5,000 on her counterclaim.
It was the attorney plaintiff’s obligation to make a record and move documents into evidence. However, given that the court considered various documents without setting forth on the record the contents of the documents it reviewed or otherwise marking the documents it relied upon in reaching its conclusion, and as the record on appeal is inadequate to allow for proper review without these documents, the judgment must be reversed and the matter remitted to the Civil Court for a new trial.
With respect to the dissent, it should be pointed out that, in findings that appear to have been dictated extemporaneously on the record after the parties left the courtroom, the judge, while pondering the issue, never found that plaintiff was not an admitted attorney. In its findings, the court ultimately stated in part, “Despite this, Ms. Outeda still is counsel and has an obligation to her client, assuming she is an attorney admitted to practice in New York, she had an obligation to her client to proceed and file the petition or once she filed the Notice of Appearance, to file an Order to Show Cause to be relieved as counsel. None of this ever happened.”
Accordingly, the judgment is reversed and the action is remitted to the Civil Court for a new trial.”