Opinion
May 15, 1997
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
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 N.Y.2d 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 malpractice but no proximate cause ( 198 A.D.2d 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 N Y2d, supra, at 177).
Concur — Milonas, J.P., Nardelli, Williams and Andrias, JJ.