61 E. 72nd St. Corp. v. Modell

2024 NY Slip Op 32160(U)

• Court: New York Supreme Court, New York County
• Decided: June 25, 2024
• Status: Unpublished

Opinion

61 E. 72nd St. Corp. v Modell 2024 NY Slip Op 32160(U) June 25, 2024 Supreme Court, New York County Docket Number: Index No. 153588/2022 Judge: Robert R. Reed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 153588/2022 NYSCEF DOC. NO. 83 RECEIVED NYSCEF: 06/26/2024

.SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 43

---X 61 EAST 72ND STREET CORPORATION, INDEX NO. 153588/2022

Plaintiff, MOTION DATE 05/07/2024 -v- MOTION SEQ. NO. 005 LESLIE MODELL,

Defendant. DECISION+ ORDER ON MOTION ---------------------------------- ------------X

HON. ROBERT R. REED:

The following e-filed documents, listed by NYSCEF document number (Motion 005) 73, 74, 75, 81, 82 were read on this motion to WITHDRAW COUNSEL

In motion sequence 005, law firm Vernon & Ginsburg, LLP (Vernon & Ginsburg),

counsel for defendant Leslie Modell, moves pursuant to CPLR §§ 321 and 2201 for an order

granting leave to withdraw as counsel and staying all proceedings in this action for thirty days.

Darryl M. Vernon, Esq., a member of Vernon & Ginsburg, submits an affirmation dated

May 6, 2024. Counselor Vernon affirm~, under penalty of perjury, that Vernon & Ginsburg seeks

to withdraw as counsel for defendant Modell due to "fundamental disagreements with the

[d]efendant concerning how to proceed in this action" (Vernon affirmation ,r 3). Mr. Vernon

further affirms that, despite "substantial effort to resolve these issues," Modell has refused

"countless" times to communicate with the firm regarding discovery issues, legal matters, and

fees (id. ,r 3).

Vernon & Ginsburg requests that this court stay all proceedings in this action for thirty

days to allow Modell time to retain new counsel. The motion is unopposed, except that plaintiff

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requests that the court also toll plaintiffs time to file a dispositive motion during any stay

granted (see affirmation of plaintiffs counsel).

CPLR 321 (b) (2) provides:

"[a]n attorney ofrecord may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct."

If an attorney deems it necessary to end the attorney-client relationship without the

consent of the client, the attorney may move on such notice as may be directed by the court, ·to

be relieved a~ counsel by court order (Farage v Ehrenberg, 124 AD3d 159 [2nd Dept 2014]).

"The decision to grant or deny permission for counsel to withdraw lies within the discretion of

the trial ~ourt, and the court's decision should not be overturned absent a showing of an

improvident exercise of discretion" (Applebaum v Einstein, 163 AD3d 905, 907 [2nd Dept

2018]).

Here, Vernon & Ginsburg submits sufficient evidence, by way of attorney affirmation, of

fundamental disagreements with Modell regarding legal strategy, as well as Modell's failure to

pay legal fees or communicate with her counsels (Vernon affirmation). A motion to withdraw as

counsel may be granted on the grounds that the attorney-client relationship has irretrievably

broken down (see Forage vEhrenberg, 124 AD3d 159, 165 [2d Dept 2014]). A party's failure to

pay legal fees also constitutes sufficient grounds (see Weiss v Spitzer, 46 AD3d 675 [2d Dept

2007] [an attorney may be permitted to withdraw from employment where a client refuses to pay - reasonable legal fees]; see also Holmes v YJA. Realty Corp., 128 AD2d 482 [1st Dept 1.987]).

Further, CPLR 321 (c) provides that "[i]f an attorney ... is removed ... at any time

before judgment, no further proceeding shall be taken in the action against the party for whom he

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appeared, without leave of the court, until thirty days after notice to appoint to appoint another

attorney has been served upon that party .... " Therefore, a stay of the proceedings is appropriate

to permit Modell to find new counsel.

Plaintiff requests to toll the time to file dispositive motions for a period from the court's

signing of Vernon & Ginsburg's Order to Show Cause on May 7, 2024 through to thirty-five

(35) days after issuance of the instant order. Plaintiff filed the Note oflssue for this action on

April 19, 2024. Pursuant to the court's most recent Status Conference Order, the parties had sixty

days after that date to file any dispositive motions (see NYSCEF Doc. No. 64). The court's order

to show cause, staying the action pending the.resolution of the motion, was dated May 7, 2024,

after eighteen days had elapsed. Accordingly, plaintiff is entitled to forty-two additional days to

file dispositive motions following the expiration of the stay.

Accordingly, it is hereby

ORDERED that the motion seq. no. 005 of Darryl M. Vernon, Esq. and Vernon &

Ginsburg, LLP to be relieved as counsel for defendant Leslie Modell is granted without

opposition upon filing of proof of compliance with the following conditions; and it is further

ORDERED that, within 10 days from entry, said attorney shall serve a copy of this order

with notice of entry upon the former client at her last known address by certified mail, return

receipt requested, and upon plaintiffs counsel herein by posting to the New York State Courts

Electronic Filing System; and it is further

ORDERED that, together with the copy of this order with notice of entry served upon

the former client, moving counsel shall forward a notice directing the former client to appoint a

substitute attorney within 30 days from the date of the mailing of the notice and the client shall

comply therewith; and it is further

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ORDERED that any new attorney retained by defendant Modell shall file a notice of

appearance with the Clerk of the General Clerk's Office (60 Centre Street, Room· 119) and the

Clerk of Part 43 within 40 days from the date the notice to retain new counsel is mailed; and it is

further

ORDERED that no further proceedings may be taken against defendant without leave of

this court for a period of 30 days after service on the former client of the aforesaid notice to

appoint a substitute attorney; and it is further

ORDERED that the departing attorney shall, within 10 days from entry, serve a copy of

this order with notice of entry on the Clerk of the General Clerk's Office (Room 119); and it is

ORDERED that such service upon the Clerk of the General Clerk's Office, the filing of a

notice of appearance as provided herein, and the filing of papers as aforesaid shall be made in

accordance with the procedures set forth in the Protocol on Courthouse and County Clerk

Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's

website at the address www.nycourts.gov/supctmanh)l; and it is further

ORDERED that plaintiff shall file any dispositive motions within forty-two (42) days of

the lifting of the stay.

This constitutes the decision and order of this court.

~ - - ROBERT R. REED, J.S.C.

§ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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