SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1465 

CA 12-00975 

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

 

MICHAEL A. WOLFSON, M.D., INDIVIDUALLY AND 

DOING BUSINESS AS “SYRACUSE OCCUPATIONAL 

MEDICINE AND ENVIRONMENTAL MEDICINE 

CONSULTANTS,” PLAINTIFF-RESPONDENT-APPELLANT,

 

V MEMORANDUM AND ORDER

FARACI LANGE, LLP, 

DEFENDANT-APPELLANT-RESPONDENT. 

 

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. 

 

Appeal and cross appeal from an order of the Supreme Court,

Onondaga County (Donald A. Greenwood, J.), entered December 22, 2011. 

The order denied the motion of defendant for summary judgment and

denied the cross motion of plaintiff for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the cross motion and as

modified the order is affirmed without costs. 

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
-2- 1465 

CA 12-00975 

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-infull 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 respect to the intended purposes of the “retainer”

payments (see generally Sally v Sally, 225 AD2d 816, 817-818). 

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 AD3d 1459, 1460-1461). We note in that regard that the

course of the parties’ performance with respect to the timing and

frequency of the “retainer” payments and the issuance of invoices in

connection therewith may constitute extrinsic evidence of their intent

in relation to any ambiguity in the agreement on those issues. 

Contrary to defendant’s contention, however, such a course of

performance does not itself constitute probative extrinsic evidence of

the parties’ intentions in relation to the dispositive issue before

the court, namely, the manner in which plaintiff would earn his fees

and the method by which they would be calculated. Thus, we conclude

that plaintiff established his entitlement to judgment as a matter of

law and that defendant failed to raise a triable issue of fact

sufficient to defeat his cross motion for summary judgment (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). We

therefore modify the order accordingly. 

Finally, we conclude, as a matter of law, that any alleged

failure by plaintiff to submit invoices within a reasonable period of

time was not a material breach of the agreement that relieved

defendant of its obligation to pay for plaintiff’s services (see

generally Grace v Nappa, 46 NY2d 560, 567, rearg denied 47 NY2d 952;

General Steel, Inc. v Delta Bldg. Syst., Inc., 297 Ga App 136, 141).

Entered: February 8, 2013 Frances E. Cafarell

Clerk of the Court