Wilson v Tully Rinckey PLLC  2021 NY Slip Op 07341  Decided on December 23, 2021 Appellate Division, Third Department is a fairly straight-forward affirmance of Supreme Court’s denial of a CPLR 3211 motion.    Here are the simple reasons why the legal malpractice claims were not dismissed.  Plaintiff sued for employment discrimination and thought that part of the settlement guaranteed her a job with the County.  It did not.  She thought she was paying a 1/3 contingent fee.  It seems she paid more.

“The settlement agreement, however, did not state that plaintiff may be employed [*2]with the County. Rather, it provided that plaintiff “will be offered a position” with the County. Plaintiff averred that she believed that she was going to receive a job offer from the County and alleged that she relied on the representation that she would be employed with the County. She further alleged that defendant did not obtain the signature of a County representative to ensure that she would receive future employment with the County and that, absent such employment, her settlement compensation was grossly deficient. Plaintiff also averred that she was never counseled about how to protect her right to future employment with the County and alleged that, after she raised questions about the settlement agreement, an attorney with defendant told her that “the law firm was ‘done’ working on her case” and that she had to sign the agreement. Accepting plaintiff’s averments and allegations as true (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them (see New York State Workers’ Compensation Bd. v Program Risk Mgt., Inc., 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim (see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]; Soule v Lozada, 232 AD2d 825, 825 [1996]).^[FN1]

Regarding the breach of contract claim, plaintiff alleged in the complaint that the retainer agreement between the parties provided that defendant would receive 33⅓% of any amount received by plaintiff as compensation. There is no dispute that defendant received $25,000 as payment for legal fees. The record, however, does not conclusively establish how this amount was calculated or how it represented 33⅓% of plaintiff’s total compensation. Taking into account that plaintiff received $10,000 as monetary compensation from the Town and other incidental benefits and according plaintiff the benefit of every possible favorable inference, defendant is not entitled to dismissal of the breach of contract claim at this juncture (see Dubon v Drexel, 195 AD3d 991, 993 [2021]; Dubrow v Herman & Beinin, 157 AD3d 620, 621 [2018]). Finally, defendant’s reliance on the voluntary payment doctrine is unavailing.”