Opinion
2005-1089 NC.
Decided March 7, 2006.
Appeal from a judgment of the District Court of Nassau County, Fourth District (Scott Fairgrieve, J.), entered February 22, 2005. The judgment, after a nonjury trial, dismissed plaintiff's action.
Judgment affirmed without costs.
PRESENT: RUDOLPH, P.J., TANENBAUM and LIPPMAN, JJ
In this small claims action, plaintiff sought to recover the sum of $3,000 from defendant, an attorney, for overpayment of attorney's fees. Plaintiff retained defendant to represent him in an action against his employer to recover damages for alleged discrimination pursuant to title VII of the Civil Rights Act of 1964. The retainer agreement provided that defendant's attorney's fees would be one-third of the total amount awarded to plaintiff by judgment or settlement. However, the retainer agreement further provided that in the event plaintiff was entitled to recover attorney's fees pursuant to statute (as is the case in a discrimination action under title VII of the Civil Rights Act of 1964 [ 42 USC § 2000e-5 (k)]), the attorney's fees would be those fees recovered in the action "if that amount is greater than the amount of Attorney's fees calculated by any other method described under [the] agreement." Since plaintiff's discrimination action was ultimately settled and the settlement agreement set forth a specific amount as attorney's fees, defendant did not breach his agreement with plaintiff by retaining the attorney's fees awarded under the settlement even though it exceeded one-third of the total amount recovered by plaintiff. Consequently, the dismissal of the instant small claims action rendered substantial justice between the parties in accordance with the rules and principles of substantive law (UDCA 1807).
Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.