Plaintiff motion for summary judgment on breach of contract for failure to pay for legal services in accordance with executed retainer agreement.

Defendant, John T. Murphy, retained the services of plaintiff, Albanese & Albanese, LLP, to represent him in his divorce proceeding. Defendant signed a retainer agreement with the plaintiff on April 24, 2012. The terms of the agreement specified an initial retainer fee of $3,000.00. The agreement further stipulated that the retainer fee did not represent the overall fee for plaintiff's services and that any costs incurred beyond the fee would be billed as per a schedule of hourly charges established by the plaintiff and enumerated in the retainer agreement.

Plaintiff proceeded to provide legal services to the defendant in connection with his divorce proceeding. As per its usual business custom, plaintiff billed the defendant on a monthly basis for its services and subtracted the pre-paid retainer from the amount due. Upon exhaustion of the retainer funds, plaintiff commenced billing defendant for its services as per its fee schedule. Defendant failed to make any payments beyond the initial retainer fee alleging that an oral agreement existed between himself and the plaintiff whereby the plaintiff would charge the defendant only up to $6,000.00 including the $3,000.00 retainer payment. Plaintiff denies any such oral agreement and further asserts that the defendant knowingly and willingly entered into the retainer agreement and understood that billing for legal services in connection with his divorce proceeding might exceed the initial retainer agreement.

It is well settled law in New York State that oral agreements made between parties prior to execution of a complete and unambiguous agreement may not alter the terms of the agreement. (Braten v. Bankers Trust Co., 60 NY2d 155, 468 NYS2d 861, 456 NE2d 802; Matter of Costantino, 31 AD3d 1097, 818 NYS2d 394; Ahava Dairy Products Corp. v. Trident Leasing Corp., 1 AD3d 546, 768 NYS2d 229.) Further, the terms of an unambiguous and complete writing should be enforced according to the plain language of the document. (Golden Gate Yacht Club v. Societe Nautique DeGeneve, 12 NY3d 248, 879 NYS2d 363, 907 NE2d 276; W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 565 NYS2d 440, 566 NE2d 639; Johnson v. Stanfield Capital Partners, LLC, 68 AD3d 628, 891 NYS2d 383; Plattsburgh v. Borner, 38 AD3d 1047, 831 NYS2d 579.)

In his opposition to plaintiff's motion for summary judgment, the defendant states:

"I feel the verbal agreement was made prior to the retainer being signed."

The terms of the retainer agreement between the plaintiff and defendant are clear and unambiguous with respect to the retainer fee and schedule of fees for additional services:

"In order for us to begin our representation, you have agreed to pay us and we have agreed to accept a retainer payment of THREE THOUSAND ($3,000.00) DOLLARS, payable upon execution of this Retainer Agreement. This retainer payment does not necessarily represent the amount of the overall fee which you may incur by virtue of our services. The amount of our eventual fee will be based upon our regular schedule of established hourly time charges, along with any out-of-pocket disbursements such as court costs, messenger services, long distance telephone calls, process service fees, mileage fees, deposition and court transcripts, and Federal Express charges which are incurred in your behalf. You are, however, expected to pay directly any third-party expenses associated with your matter."

Furthermore, defendant acknowledges in Paragraph 15 that no other agreements or terms were effective other than what is expressed in the retainer agreement:

(a)The client acknowledges that he or she has read this agreement in [*3]its entirety, has had full opportunity to consider its terms, and fully understands its terms and agrees to such terms. We are neither acting as your counsel nor advising you with respect to this letter since we would have a conflict of interest were we to do so. If you would like additional information or have questions, you have the right to seek independent counsel regarding this agreement.

(b)The client fully understands and acknowledges that there are no additional or different terms or agreements other than those expressly set forth in this written agreement.

Accordingly, the oral agreement alleged by the defendant is barred by the Parol Evidence Rule because the terms of the retainer agreement are complete and unambiguous. The retainer agreement is a valid and enforceable contract. The defendant is liable under its terms for all fees beyond the initial retainer amount.

Judgment for the plaintiff in the amount of $11,445.45, together with accrued interest from July 15, 2013, together with costs and disbursements.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:March 14, 2014

cc:Albanese & Albanese, LLP

John T. Murphy, pro se

SF/mp