You are here: / / DEFENDANT-ATTORNEY DEMONSTRATED THE RETAINER AGREEMENT IN THE DRUNK-DRIVING...
,

DEFENDANT-ATTORNEY DEMONSTRATED THE RETAINER AGREEMENT IN THE DRUNK-DRIVING AND VEHICULAR HOMICIDE CASE WAS NOT PROCEDURALLY UNCONSCIONABLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant-attorney’s motion for summary judgment on the “unconscionable retainer agreement” cause of action should have been granted:

… [D]efendant met his initial burden on the motion by establishing that the retainer agreement is not procedurally unconscionable. Plaintiff’s deposition testimony, which defendant submitted in support of the motion, demonstrated that plaintiff had ample opportunity to become fully informed about the retainer agreement and to make a meaningful choice about representation. Plaintiff did not dispute in his deposition that, as defendant averred, defendant previously represented plaintiff in relation to a charge of driving while intoxicated for which a similar fixed-fee retainer agreement was used. Indeed, plaintiff admitted that defendant previously represented him at least once. Defendant’s submissions on the motion also established that the retainer agreement here was not presented to plaintiff until nine days after the drunk-driving incident giving rise to the criminal charges against him and several days after plaintiff had been released from the hospital. By that time, plaintiff had been arraigned on the felony complaint, and therefore was aware of the charges of aggravated vehicular homicide against him for the deaths of two persons. Before signing the retainer agreement, plaintiff’s family had contacted at least one other attorney on plaintiff’s behalf, and plaintiff negotiated terms of the agreement with defendant. Furthermore, although defendant submitted plaintiff’s interrogatory answers in which plaintiff stated that he relied on defendant’s statements that defendant had never had a client go to prison and that he would work on plaintiff’s case “24/7,” plaintiff conceded during his deposition that defendant never guaranteed that he would avoid prison and that plaintiff understood defendant’s statements regarding the amount of time defendant would spend on plaintiff’s case to be hyperbole. Divito v Fiandach, 2021 NY Slip Op 07350, Fourth Dept 12-23-21

 

You might also like
UNAMBIGUOUS TERM OF INSURANCE CONTRACT CAPPING PAYMENT FOR WATER DAMAGE SHOULD HAVE BEEN ENFORCED.
ANONYMOUS 911 CALL COUPLED WITH POLICE OFFICER’S OBSERVATIONS PROVIDED REASONABLE SUSPICION JUSTIFYING DETENTION OF THE DEFENDANT.
SUPREME COURT’S VACATION OF THE ARBITRATION AWARD AS “IRRATIONAL” REVERSED, CRITERIA EXPLAINED (FOURTH DEPT).
Victim’s Statements Admissible as Excited Utterances Despite the Passage of Some Time Before the Statements Were Made
QUESTION OF FACT RAISED ABOUT WHETHER THE HOSPITAL DEFENDANTS MADE A REASONABLE AND SUFFICIENT EFFORT TO LOCATE THE NEXT OF KIN OF THE DECEDENT IN THIS RIGHT-OF-SEPULCHER CASE; THE PUBLIC ADMINISTRATOR, HOWEVER, ENJOYED GOVERNMENTAL FUNCTION IMMUNITY AND NO SPECIAL DUTY WAS OWED PLAINTIFFS (FOURTH DEPT).
THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED BECAUSE RESPONDENTS ADDRESSED THE RELEVANT ISSUES AT ORAL ARGUMENT; THE MEDICAL RECORDS DEMONSTRATED RESPONDENTS HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM; ALTHOUGH THE EXCUSE FOR DELAY WAS NOT ADEQUATE, THE DEFECT DID NOT REQUIRE DENIAL OF THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; THE APPLICATION SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).
SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT).
THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE JUDGE IN THIS BENCH TRIAL DID NOT EXPLICITLY RULE ON DEFENDANT’S... THE SUBROGATION ACTION BY THE INSURER OF THE PROPERTY OWNER IN THIS SLIP AND...