Opinion
March 23, 1999
Appeal from the Surrogate's Court, New York County (Renee Roth, S.).
The Surrogate's Court correctly held that the provision of the retainer agreement entitling the attorney to "[t]en (10%) percent of any lump-sum paid to [the client] in settlement of [her] claims" unambiguously applied only to a one-time settlement payment to the client, and thus did not apply to the periodic payments that the attorney negotiated. To construe the phrase "any lump-sum paid" to include such periodic payments would render the word "lump-sum" surplusage, and such an interpretation should be avoided where possible ( see, Ruttenberg v. Davidge Data Sys. Corp., 215 A.D.2d 191, 196). To the extent the provision is ambiguous, it must be construed against the attorney and in favor of the client ( see, Jacobson v. Sassower, 66 N.Y.2d 991).
However, insofar as the petition sought to recover alleged hourly fees and disbursements, it was error to dismiss it as barred by the Statute of Limitations, on which the client did not rely in her cross motion for summary judgment. Because the client's moving papers did not purport to show when the attorney last provided legal services to her, she did not establish that she was entitled to judgment as a matter of law with respect to the claims for hourly fees and disbursements, and the cross motion should therefore have been denied insofar, as addressed to such claims, regardless of the sufficiency of the opposing papers ( see, Ayotte v. Gervasio, 81 N.Y.2d 1062). By the same token, the client's counterclaim to recover an alleged overcharge also should be reinstated.
Concur — Rosenberger, J. P., Nardelli, Williams and Wallach, JJ.