Marcos v. 410 W. 207th Acquisition LLC

2024 NY Slip Op 33297(U)

• Court: New York Supreme Court, New York County
• Decided: September 20, 2024
• Docket: Index No. 159765/2022
• Status: Unpublished

Opinion

Marcos v 410 W. 207th Acquisition LLC 2024 NY Slip Op 33297(U) September 20, 2024 Supreme Court, New York County Docket Number: Index No. 159765/2022 Judge: Judy H. Kim 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. 159765/2022 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 09/20/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 159765/2022 MARCOS PEREZ MARCOS, 12/06/2023, Plaintiff, MOTION DATE 03/07/2024

-v- MOTION SEQ. NO. 002 003

410 WEST 207TH ACQUISITION LLC, INWOOD LOT 9 ASSOCIATES LLC, INWOOD LOT 9 DEVELOPMENT DECISION + ORDER ON ASSOCIATES LLC, MOTION Defendants. ---------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 42 were read on this motion to STRIKE PLEADINGS .

The following e-filed documents, listed by NYSCEF document number (Motion 003) 38, 39, 40, 41, 43, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 were read on this motion for ATTORNEY - WITHDRAW .

Upon the foregoing documents, defendants’ motion to strike or compel is granted in limited

part, and plaintiff’s counsel’s motion to withdraw is granted.

The instant action stems from an alleged accident that occurred on September 28, 2022,

when plaintiff Marcos Perez Marcos was working at 407 West 206th Street, New York, New York,

On December 6, 2023, defendants moved to compel plaintiff to respond to their Demand

for a Verified Bill of Particulars, SCHIP Extension Act Demand for a Verified Bill of Particulars,

Combined Discovery Demands, and Demand for Photographs, Videos, and other Recorded

Materials. That motion was submitted on May 8, 2024, by stipulation (NYSCEF Doc. No. 42). No

opposition was filed. Instead, on March 7, 2024, plaintiff’s counsel Sanders, Aronova, Grossman,

Woycik, Viener & Kalant, PLLC moved by order to show cause for leave to withdraw. Plaintiff’s

159765/2022 MARCOS, MARCOS PEREZ vs. 410 WEST 207TH ACQUISITION LLC ET AL Page 1 of 4 Motion No. 002 003

1 of 4 [* 1] INDEX NO. 159765/2022 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 09/20/2024

counsel asserts that it has been unable to provide the discovery sought because it has been unable

to communicate with plaintiff for over a year (NYSCEF Doc. No. 45 [Bernstein Affirm. at ¶¶4,

9]).

DISCUSSION

Defendants’ motion to strike or compel is granted, in part. CPLR 3124 provides that “[i]f

a person fails to respond to or comply with any request, notice, interrogatory, demand, question or

order under this article ... the party seeking disclosure may move to compel compliance or a

response” (CPLR 3124). CPLR 3126, in turn, authorizes the court to sanction a party who “refuses

to obey an order for disclosure or willfully fails to disclose information which the court finds ought

to have been disclosed.

In this case, as there are no prior Court orders directing the disclosure of information sought

here, sanctions under CPLR 3126 are unavailable (See Emigrant Mortg. Co., Inc. v Beckerman,

105 AD3d 895, 896 [2d Dept 2013]). However, the Court grants that branch of defendants’ motion

pursuant to CPLR 3124 to the extent that plaintiff is ordered to respond to defendants’ outstanding

demands.

The motion by Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC to withdraw

as plaintiff's counsel is granted. CPLR 321 permits the attorney of record for a party to withdraw

upon a showing that good cause exists to end the relationship with the client (CPLR 321[b][2]).

Good cause is generally based upon an irretrievable breakdown in the relationship or a failure of

cooperation by the client (See Farage v Ehrenberg, 124 AD3d 159 [2d Dept 2014]; see also

McCormack v Kamalian, 10 AD3d 679 [2d Dept 2004] [“A lawyer may withdraw from

representing a client, if the client, by his or her conduct, ‘renders it unreasonably difficult for the

lawyer to carry out employment effectively’”]).

159765/2022 MARCOS, MARCOS PEREZ vs. 410 WEST 207TH ACQUISITION LLC ET AL Page 2 of 4 Motion No. 002 003

2 of 4 [* 2] INDEX NO. 159765/2022 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 09/20/2024

Here Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC has demonstrated

that it is unable to represent plaintiff in this case due to his refusal to cooperation in prosecuting

the action and/or communicate with counsel. Accordingly, the motion for leave to withdraw as

plaintiff's counsel is granted without opposition, and the instant action is stayed for forty-five days

for plaintiff to retain new counsel.

In light of the foregoing, it is

ORDERED that Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC’s motion

to withdraw as plaintiff’s counsel is granted; and it is further

ORDERED that Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC shall,

within five days of filing of this order on NYSCEF, serve a copy of this order, with notice of entry,

upon the plaintiff by e-mail and U.S. first-class mail, and serve upon defendants by e-filing same

via NYSCEF; and it is further

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

this Court for a period of forty-five days from the date of this decision and order, within which

time plaintiff must retain a new attorney or shall be deemed to be proceeding pro se; and it is

further

ORDERED that defendants’ motion to strike or compel is granted to the limited extent

that plaintiff shall respond to defendants’ Demand for a Verified Bill of Particulars; SCHIP

Extension Act Demand for a Verified Bill of Particulars; Combined Discovery Demands; and

Demand for Photographs, Videos, and other Recorded Materials within fifteen days after the stay

of this action has been lifted; and it is further

159765/2022 MARCOS, MARCOS PEREZ vs. 410 WEST 207TH ACQUISITION LLC ET AL Page 3 of 4 Motion No. 002 003

3 of 4 [* 3] INDEX NO. 159765/2022 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 09/20/2024

ORDERED that Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC are

granted a lien for their disbursement in the amount of $716.26; and it is further

ORDERED that Sanders, Aronova, Grossman, Woycik, Viener & Kalant, PLLC is granted

a charging lien for attorneys’ fees against the proceeds of any settlement or judgment in this action;

and it is further

ORDERED that this charging lien is preserved until such time as a Court, upon settlement

or judgment, may hear and determine the reasonable value of the Sanders, Aronova, Grossman,

Woycik, Viener & Kalant, PLLC’s services provided; and it is further

ORDERED that a hearing to determine the reasonable value of such services shall be held

following such settlement or judgment; and it is further

ORDERED that no settlement or judgment shall be paid or disbursed until the amount of

the charging lien is determined at said hearing; and it is further;

ORDERED that parties are to appear for a preliminary conference in Part 4 (80 Centre

Street, room 308) on December 13, 2024 at 10:00 am; and it is further

ORDERED that should plaintiff fail to produce the foregoing discovery by the deadline

set forth above and fail to appear at the December 13, 2024 preliminary conference, the Court

intends to dismiss this action pursuant to 22 NYCRR 202.27(b).

This constitutes the decision and order of the Court.

9/20/2024 DATE HON. JUDY H. KIM, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

159765/2022 MARCOS, MARCOS PEREZ vs. 410 WEST 207TH ACQUISITION LLC ET AL Page 4 of 4 Motion No. 002 003

4 of 4 [* 4]