Wittenberg Distributors, Inc. v. Kuhns Brothers & Laidlaw, Inc.

Judgment unanimously affirmed with costs. Memorandum: A retainer fee will not be deemed nonrefundable unless the language of an agreement to that effect is clear and it is established that the party obligated to pay the retainer understood that to be the nature of the agreement (see, Jacobson v Sassower, 66 NY2d 991, 993, affg 107 AD2d 603). In this case, the agreement omitted any reference to whether the retainer was refundable, and Supreme Court correctly determined that plaintiff was entitled to summary judgment for the amount of the retainer fee it paid. (Appeal from judgment of Supreme Court, Onondaga County, Lowery, J. — summary judgment.) Present — Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.