         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-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 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
