Jacobson v. Sassower , 483 N.Y.S.2d 711 ( 1985 )

— Order of the Appellate Term, First Department, entered November 29, 1983 (122 Mise 2d 863), affirming a judgment of the Civil Court of the City of New York, Small Claims Part, New York County (David B. Saxe, J.), entered April, 1982 (113 Mise 2d 279), in favor of the claimant, Gerald Jacobson, is affirmed, without costs.

While we agree that the judgment of the Civil Court, Small Claims Part, should be affirmed, we do so for the reason that this “nonrefundable” retainer agreement is ambiguous, as found by the Trial Judge, and therefore, under settled principles such ambiguity must be construed against the party drafting the agreement.

Whether enforcement of such a retainer should be denied as unconscionable or as having a chilling effect on a client’s right to freely discharge his attorney should depend on a “full exploration of all the facts and circumstances [of the particular case], including the intent of the parties and whether the fee demanded is out of proportion to the value of the attorney’s services”. (Gross v Russo, 47 AD2d 655.) Such retainers, while not to be encouraged, are not, in all cases, unenforceable as a matter of law. Concur — Carro, Bloom, Fein and Alexander, JJ.