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 A.D.2d 780, 782, lv denied 89 N.Y.2d 805), and there is no showing that defendant would have obtained a better result had the case gone to trial ( see Popescu v. McCarthy, 271 A.D.2d 204, lv denied 95 N.Y.2d 958).
The second and third counterclaims are refuted by the documentary evidence and should have been dismissed ( see Beattie v. Brown Wood, 243 A.D.2d 395).
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 plaintiff's 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 A.D.2d 249, 250).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.