Defendant appeals from a judgment of the Small Claims Part of the Civil Court, New York County (Barbara Jaffe, J.), entered on or about July 6, 2005, after trial, in favor of plaintiff and awarding it damages in the principal sum of $1,562.50.

PER CURIAM

Judgment (Barbara Jaffe, J.), reversed, without costs,
and judgment awarded in favor of defendant dismissing the action. The Clerk is directed to enter judgment accordingly.

Plaintiff-landlord commenced this small claims action in March 2005 to recover attorney's fees allegedly owed by defendant-tenant in connection with a prior nonpayment summary proceeding settled by the parties via written stipulation "so ordered" in December 2002. So far as shown, the settlement agreement (only portions of which were read into the record at the trial of the small claims action) awarded landlord a recovery of rent arrears for the two month period covered by the underlying nonpayment petition (in an amount not specified in the present record), excluding the late fees therein sought by landlord. The settlement stipulation further provided that entry of a possessory judgment in landlord's favor would await its submission of an "affidavit of default" attesting to tenant's failure to tender the agreed upon rent arrears. No such affidavit of default was forthcoming, it being undisputed that tenant immediately tendered the full amount of the stipulated rent that day in court. Although the settlement stipulation by its terms severed landlord's claim for attorney's fees "without prejudice," the Housing Court (Ernest J. Cavallo, J.) expressly noted in colloquy on the record its skepticism as to the landlord's potential entitlement to collect legal fees "in view of the history of this case" - an apparent reference to the tenant's unrefuted assertion that her initial, pre-petition rent tender was timely sent, but "got lost".

Considering that landlord ultimately was denied the central possessory relief sought in the underlying summary proceeding, and in view of the Housing Court's expressed doubts over landlord's right to collect attorney's fees in connection with that proceeding, the award of such fees in the context of this small claims action does not achieve "substantial justice" consistent with substantive law principles (CCA 1807). Were we not dismissing the action outright, we could remand the matter for a new trial solely on the issue of damages, given [*2]the absence of any competent showing of the reasonable value of the legal services giving rise to plaintiff-landlord's claim.
This constitutes the decision and order of the court.
I concur I concur I concur
Decision Date: November 21, 2006