
    Jaffe & Asher LLP, Appellant, v Arnold S. Ross, Respondent.
    [775 NYS2d 522]
   Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered or about November 20, 2003, which, to the extent appealed from, denied plaintiffs motion for summary judgment and dismissal of all counterclaims, unanimously modified, on the law, the motion granted to the extent of awarding summary judgment on that portion of the first cause of action seeking to recover the balance of an unpaid contingency fee, with execution stayed pending resolution of that portion of the fourth counterclaim seeking damages, and dismissing all remaining counterclaims, and otherwise affirmed, without costs, and the matter remanded for further proceedings.

The first counterclaim and that portion of the fourth counterclaim for legal malpractice based on an alleged failure to obtain an adjournment should have been dismissed. Defendant approved the settlement and accepted its benefits without complaint until the initiation of this action to recover legal fees. There is no evidence that the negotiation of a settlement in lieu of a trial was in any way wrongful or negligent (see Sei Young Choi v Dworkin, 230 AD2d 780, 782 [1996], lv denied 89 NY2d 805 [1996]), and there is no showing that defendant would have obtained a better result had the case gone to trial (see Popescu v McCarthy, 271 AD2d 204 [2000], lv denied 95 NY2d 758 [2000]).

The second and third counterclaims are refuted by the documentary evidence and should have been dismissed (see Beattie v Brown & Wood, 243 AD2d 395 [1997]).

As to the first cause of action, the retainer agreement entitles plaintiff to a percentage contingency fee based upon settlement of the dispute. In view of plaintiffs concession that a triable issue of fact exists with regard to that portion of the fourth counterclaim seeking $65,000 in damages for a cost allegedly hidden in the settlement agreement, the judgment should be stayed pending resolution of that counterclaim (see Masterwear Corp. v Bernard, 298 AD2d 249, 250 [2002]). Concur—Tom, J.P., Ellerin, Lerner and Marlow, JJ.  