Wolfson v. Faraci Lange, LLP

• Decision Date: 08 February 2013
• Citation: 103 A.D.3d 1272,2013 N.Y. Slip Op. 00872,959 N.Y.S.2d 792
• Parties: Michael A. WOLFSON, M.D., Individually and Doing Business as “Syracuse Occupational Medicine and Environmental Medicine Consultants,” Plaintiff–Respondent–Appellant, v. FARACI LANGE, LLP, Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1272

959 N.Y.S.2d 792

2013 N.Y. Slip Op. 00872

Michael A. WOLFSON, M.D., Individually and Doing Business as “Syracuse Occupational Medicine and Environmental Medicine Consultants,” Plaintiff–Respondent–Appellant,

v.FARACI LANGE, LLP, Defendant–Appellant–Respondent.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 8, 2013.

Faraci Lange, LLP, Rochester (Raul E. Martinez of Counsel), for Defendant–Appellant–Respondent.

Melvin & Melvin, PLLC, Syracuse (Louis Levine of Counsel), for Plaintiff–Respondent–Appellant.

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff, a consultant in the field of occupational and environmental medicine, entered into a written agreement with defendant, a law firm, to provide medical consulting services at a rate of $325 per hour on two toxic tort cases. Over the course of their lengthy relationship, defendant paid plaintiff a total of $28,000 in three “retainer” installments. After one of those cases settled, plaintiff sent defendant itemized invoices for services rendered on both cases totaling an additional $48,727.50, which remain unpaid. Plaintiff thereafter commenced this action for breach of contract.

Both parties contend that the agreement is clear and unambiguous. Plaintiff contends that the “retainer” payments merely secured the full amount of his compensation for the services that he rendered in both cases, without regard to whether those services were rendered before or after the date of each payment. In contrast, defendant contends, inter alia, that each “retainer” payment constituted payment-in-full for all services provided by plaintiff up to the date thereof, and that it therefore does not owe plaintiff any further sums. Defendant moved and plaintiff cross-moved for summary judgment based upon the foregoing contentions. Supreme Court, concluding that there were triable issues of fact with respect to whether the “retainers” paid by defendant were intended to constitute payment-in-full for plaintiff's services, denied the motion and the cross motion. Defendant appeals and plaintiff cross appeals.

We conclude that, notwithstanding the assertions of the parties to the contrary, the court properly determined that the agreement was ambiguous with respectto the intended purposes of the “retainer” payments ( see generally Sally v. Sally, 225 A.D.2d 816, 817–818, 638 N.Y.S.2d 832). Plaintiff, however, presented extrinsic evidence in admissible form establishing that the parties intended to treat the “retainer” payments as security for defendant's entire obligation under the agreement, and not as payment-in-full for all services that plaintiff had provided up to the date of each respective payment, whether invoiced or not ( see generally Zoladz Constr. Co., Inc. v. County of Erie, 89 A.D.3d 1459, 1460–1461, 932 N.Y.S.2d 642). We note in that regard that the course of the...