Opinion
2007-246 RO C.
Decided on January 3, 2008.
Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Victor J. Alfieri, Jr., J.), entered September 28, 2006. The judgment dismissed the action.
Judgment reversed without costs and matter remanded to the court below for all further proceedings.
PRESENT: RUDOLPH, P.J., LaCAVA and SCHEINKMAN, JJ.
Plaintiff, an attorney, commenced this small claims action for breach of contract to recover the sum of $2,999 for legal services rendered to defendant in 2000. At the outset of the proceedings in the court below, defendant's counsel orally moved to dismiss on the ground that the action was barred by the statute of limitations. A colloquy ensued wherein plaintiff alleged that he had had a verbal agreement with defendant pursuant to which defendant agreed to pay him for his legal services in connection with a lawsuit which was subsequently settled in June of 2001, while defendant was represented by a different attorney. The court, without determining defendant's motion, dismissed the action on the ground that no retainer agreement had been signed, and that no agreement of the parties had been shown.
Our review is limited to determining whether substantial justice was done between the parties "according to the rules and principles of substantive law" (UJCA 1807). Here, the court's dismissal of this action on the ground that plaintiff did not have a written retainer agreement with defendant was erroneous. The applicable rule regarding written letters of engagement ( 22 NYCRR Part 1215) did not take effect until March 4, 2002, some two years after the claimed representation commenced. Moreover, the failure of an attorney to have a written agreement with the client with respect to a non-matrimonial civil matter, does not bar the attorney from seeking a quantum meruit recovery, provided that the attorney can demonstrate that the terms of the agreement were fair, fully understood, and agreed to by the client ( see Seth Rubinstein, P.C. v Ganea , 41 AD3d 54, 63-64).
Additionally, while the court did not reach the statute of limitations issue raised by defense counsel, the court acted solely upon the unsworn colloquy by plaintiff and defense counsel in their arguments on the motion to dismiss. Regardless of profession or affiliation to the court system, all persons testifying in a civil action, even a small claims action, must be sworn ( see Trensky v Johnson, 1 Misc 3d 50 [App Term, 1st Dept 2003]; see also Siegel, NY Prac § 388, at 655 [4th ed]). Indeed, proper procedure in the Small Claims Part requires that an oath or affirmation be administered to all witnesses ( see 22 NYCRR 214.10 [j]). Furthermore, plaintiff was not given an opportunity to properly present his case, as was his right pursuant to substantive law ( see Moon v Khazraie, 11 Misc 3d 131 [A], 2006 NY Slip Op 50348[U] [App Term, 9th 10th Jud Dists]; Graves v American Express, 175 Misc 2d 285 [App Term, 2d 11th Jud Dists 1997]).
Accordingly, the matter is remanded to the court below for all further proceedings. While we do not pass on the issue, we note that there may be a question regarding the tolling of the statute of limitations during the period of time when plaintiff was in military service ( see Military Law § 308; see also 50 USC Appendix § 526).
Rudolph, P.J., LaCava and Scheinkman, JJ., concur.