Abreu v. Ferrer

Appellate Division of the Supreme Court of New York

Abreu v. Ferrer

239 A.D.2d 249, 658 N.Y.S.2d 12, 1997 N.Y. App. Div. LEXIS 5178

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1997

StatusPublished

Cited by1 cases

This text of 239 A.D.2d 249 (Abreu v. Ferrer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abreu v. Ferrer, 239 A.D.2d 249, 658 N.Y.S.2d 12, 1997 N.Y. App. Div. LEXIS 5178 (N.Y. Ct. App. 1997).

Pincite

Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), entered August 2, 1996, as resettled by the order dated September 23, 1996, which, inter alia, vacated and discharged appellant’s notice of lien for attorney’s fees, unanimously affirmed, with costs.

The subject retainer agreement, a standard Blumberg form that speaks only of prosecuting or adjusting a claim for personal injuries without mention of appeals, is unclear as to whether it was to terminate upon entry of an adverse judgment, as appellant argues, or was to persist through conclusion of the matter, including appeal, as plaintiff client urges (Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177). In such event the law mandates a construction in accordance with the client’s understanding (supra). Here, there is no question that plaintiff understood that appellant was to represent her through appeal; indeed, according to appellant, plaintiff rejected the settlement offer stating that she would appeal any jury award of less than $250,000, and it was plaintiff’s insistence that an appeal be taken, contrary to appellant’s advice, that was the ostensible justification for appellant’s motion to withdraw. Since appellant withdrew from the case without representing plaintiff on appeal, he breached the retainer agreement and is not entitled to compensation (supra, at 177-178), notwithstanding that his efforts in the first trial resulted in a not entirely unfavorable verdict finding medical malprac[250]*250tice but no proximate cause (198 AD2d 150). Even if the retainer agreement were construed as having terminated upon entry of the adverse verdict, appellant would not be entitled to compensation, since the retainer provided that appellant’s fee would be determined by the sum recovered, and none was recovered (68 NY2d, supra, at 177). Concur—Milonas, J. P., Nardelli, Williams and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Order, Supreme Court, New York County (Elliott Wilk, J.), entered August 2, 1996, as resettled by the order dated September 23, 1996, which, inter alia, vacated and discharged appellant’s notice of lien for attorney’s fees, unanimously affirmed, with costs.

The subject retainer agreement, a standard Blumberg form that speaks only of prosecuting or adjusting a claim for personal injuries without mention of appeals, is unclear as to whether it was to terminate upon entry of an adverse judgment, as appellant argues, or was to persist through conclusion of the matter, including appeal, as plaintiff client urges (Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177). In such event the law mandates a construction in accordance with the client’s understanding (supra). Here, there is no question that plaintiff understood that appellant was to represent her through appeal; indeed, according to appellant, plaintiff rejected the settlement offer stating that she would appeal any jury award of less than $250,000, and it was plaintiff’s insistence that an appeal be taken, contrary to appellant’s advice, that was the ostensible justification for appellant’s motion to withdraw. Since appellant withdrew from the case without representing plaintiff on appeal, he breached the retainer agreement and is not entitled to compensation (supra, at 177-178), notwithstanding that his efforts in the first trial resulted in a not entirely unfavorable verdict finding medical malprac[250]*250tice but no proximate cause (198 AD2d 150). Even if the retainer agreement were construed as having terminated upon entry of the adverse verdict, appellant would not be entitled to compensation, since the retainer provided that appellant’s fee would be determined by the sum recovered, and none was recovered (68 NY2d, supra, at 177). Concur—Milonas, J. P., Nardelli, Williams and Andrias, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

239 A.D.2d 249, 658 N.Y.S.2d 12, 1997 N.Y. App. Div. LEXIS 5178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abreu-v-ferrer-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack