Vitale v. Buttafuoco & Associates

—In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 2, 2001, which granted the plaintiffs motion for partial summary judgment on her first cause of action to recover damages for breach of contract, and denied its cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiff established her entitlement to judgment as a matter of law on her cause of action to recover damages for breach of contract. The defendant’s opposition failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320). In this regard, we agree with the Supreme Court’s conclusion that the defendant, which represented the plaintiff in an underlying negligence lawsuit, should not have included as part of its contingency fee an amount which represented one third of a waived workers’ compensation lien. The inclusion of the additional amount was a breach of the parties’ retainer agreement and was essentially violative of Workers’ Compensation Law § 24 (see Matter of Purtill, 111 Misc 2d 916; Matter of Racz, 114 Misc 2d 146; cf. Brock v Mack Trucks, 178 AD2d 701). The Supreme Court also properly denied the defendant’s cross motion for summary judgment dismissing the complaint. Santucci, J.P., Altman, Florio and Feuerstein, JJ., concur.