Gibbs v. Dweck

Order, Supreme Court, Bronx County, entered on May 8, 1975, denying plaintiffs motion for summary judgment, unanimously reversed, on the law, with $60 costs and disbursements to appellant, and the motion granted. The mortgage on the premises 2120 St. Paul’s Avenue, Bronx County, held by defendant, should be vacated as it does not secure any indebtedness. The retainer agreement drawn by defendant attorney provides in pertinent part as follows: "In the event that you are not successful in vacating the judgment or the lien, as aforementioned, then my liability to you for legal services shall be only in the sum of $800. paid to you”. Defendant admittedly received $800. While he was successful at the trial level, the Appellate Division reversed and the Court of Appeals affirmed such reversal. Hence, defendant was paid all that he was entitled to and no debt exists. There is no specific language in the agreement indicating the contrary. The language in the retainer agreement that "The aforementioned retainer shall not include any services you may render in connection with any appeal in this proceeding’’ merely means that defendant would be entitled to an additional fee for appellate services, and, not, as urged by him that, "I was to be paid the contingency if I was successful in the trial court”. Settle order on notice. Concur—Stevens, P. J., Markewich, Murphy, Capozzoli and Lane, JJ.