Clingerman v. Ali

2024 NY Slip Op 31996(U)

• Court: New York Supreme Court, New York County
• Decided: June 7, 2024
• Status: Unpublished

Opinion

Clingerman v Ali 2024 NY Slip Op 31996(U) June 7, 2024 Supreme Court, New York County Docket Number: Index No. 651001/2019 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. 651001/2019 NYSCEF DOC. NO. 284 RECEIVED NYSCEF: 06/10/2024

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

MATHEW C. CLINGERMAN, INDEX NO. 651001/2019

Plaintiff, MOTION DATE 03/14/2024 - V- MOTION SEQ. NO. 005 ALISHER ALI, EURASIA CAPITAL LTD., EURASIA CAPITAL (MONGOLIA) LLC, SILK ROAD MANAGEMENT LIMITED, SILK ROAD FINANCE LIMITED, SILK ROAD DECISION+ ORDER ON FINANCE INC., MOTION Defendant. ------------------------------------------X

HON. ROBERT R. REED:

The following e-filed documents, listed by NYSCEF document number (Motion 005) 273, 274, 275, 276, 277,278,279,280 were read on this motion to SUBST/RELIEVE/WITHDRAW COUNSEL

In this action for fraud, breach of fiduciary duty and conversion, counsel Robert G.- Heim,

Esq. of Tarter Krinsky & Drogin LLP, moves, pursuant to CPLR 32l(b)(2), to be relieved as

counsel for defendants Alisher Ali, Eurasia Capital LTD, Eurasia Capital (Mongolia) LLC, Silk

Road Management Limited and Silk Road Finance Limited (defendants) (NYSCEF doc. no. 275).

Counsel asserts that all the legal actions taken in their client's defense were authorized by

defendants. Yet, defendants have failed to pay their legal fees and owe a substantial sum in unpaid

fees and expenses (NYSCEF doc. no. 274, para. 8).

Defendants do not oppose counsel's request for withdrawal. By affirmation dated April 3,

2024, defendant Alisher Ali expresses an intent to find new counsel and requests a 50-60 day stay

to secure funds and retain a new counsel (NYSCEF doc. no. 278). Kamoliddin Talipov, the sole

beneficial owner of Silk Road Management Ltd., Silk Road Finance Ltd., and Eurasia Capital Ltd:,

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also submitted an affirmation dated April 5, 2024, requesting a 60 day stay to find new counsel

(NYSCEF doc. no. 280). Talipov did not substantively oppose counsel's request to withdraw.

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 as counsel by court order (Farage v Ehrenberg, 124 AD3d 159 [2d Dept 2014]).

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

the trial court, 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]).

A party's failure to pay legal fees is sufficient grounds to grant leave to withdraw

(Applebaum v Einstein, 163 AD3d 905,907 [1st Dept 2018][finding the court improvidently

exercised its discretion in denying leave to withdraw when the plaintiff was in substantial arrears

in payment of fees, failed to cooperate with his legal representation and failed to oppose the

motion]; 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].

Accordingly, it is hereby

ORDERED that the motion of Robert G. Heim, Esq. of Tarter Krinsky & Drogin LLP, to

be relieved as attorney for defendants Alisher Ali, Eurasia Capital LTD, Eurasia Capital

651001/2019 CLINGERMAN, MATHEW C. vs. ALI, ALISHER Page 2 of4 Motion No. 005

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(Mongolia) LLC, Silk Road Management Limited and Silk Road Finance Limited is granted upon

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

ORDERED that said attorney serve a copy of this order with notice of entry upon the

. former clients at their last known address by certified mail, return receipt requested, and upon the

attorneys for all other parties appearing herein by filing 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 60 days from the date of the mailing of the notice and the client shall

comply therewith, except that, in the event defendant Alisher Ali intends instead to represent

himself, he shall notify the Clerk of Part 43 by email and filing on the New York State Courts

Electronic Filing System of this decision in writing within said 60-day period; and it is further

ORDERED that the departing attorneys 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

further

ORDERED that any new attorney retained by defendants file a notice of appearance with

the Clerk of the General Clerk's Office and the Clerk of the Part 43 within 75 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 the former client without

leave of this court for a period of 90 days after service on the former client of the aforesaid notice

to appoint a substitute attorney; and it is further

ORDERED that all filings shall be made in accordance with the procedures set forth in the

Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible

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at the "E-Filing" page on the court's website]; and it is further

ORDERED that all parties, and counsel, including any newly retained counsel, shall appear

for a virtual status conference on September 10, 2024 at 10:00 a.m.

06/07/2024 DATE ROBERT R. REED, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART 0 OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

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

651001/2019 CLINGERMAN, MATHEW C. vs. ALI, ALISHER Page 4 of 4 Motion No. 005

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