Loren v. Francis , 624 NYS2d 734 ( 1994 )

OPINION OF THE COURT

Memorandum.

Judgment unanimously reversed without costs and matter remanded for trial in the Small Claims Part of the court.

Plaintiff, an attorney, appeared pro se in the Civil Court small claims action herein and defendant appeared by counsel. The court dismissed the action without taking testimony essentially because plaintiff refused the court’s recommendation that he transfer the case for trial by the Civil Court and pay the additional filing fees therefor. This was apparently based on 22 NYCRR 208.41 (f), relating to small claims procedure in the Civil Court of the City of New York, which states: "Where all parties appear by attorneys, the case shall be transferred to the appropriate county division of the Civil Court of the City of New York, and the claimant shall pay any additional filing fees required by law. If the claimant fails or refuses to pay such filing fees, the court shall dismiss the case.”

In our view a plaintiff’s access to a small claims trial where defendant appears by counsel of its choice should not be barred merely because he is himself an attorney. Since such exclusion arguably appears to be contrary to the principles of equal protection of the law the regulation should be strictly construed. Here plaintiff did not appear "by” an attorney (which connotes appearance by counsel other than the party) but on his own behalf.

Kassoff, P. J., Aronin and Patterson, JJ., concur.