Tartaglione v. Tiffany

280 A.D.2d 543, 720 N.Y.S.2d 404, 2001 N.Y. App. Div. LEXIS 1955

Opinion

—In an action, inter alia, to recover damages for defamation and nuisance, the nonparty, Lieberman & LeBovit & Brofman, appeals from an order of the Supreme Court, Dutchess County (Beisner, J.), dated December 9, 1999, which denied its motion for leave to withdraw as counsel for the plaintiff.

Ordered that the order is reversed, on the law, without costs or disbursements, and the motion is granted; and it is further,

Ordered that the plaintiff’s counsel is directed to serve its client with a copy of this decision and order by mailing a copy to his last known address by certified mail, return receipt requested, within 30 days of the date of the decision and order, which shall constitute notice to appoint another attorney pursuant to CPLR 321 (c); and it is further,

Ordered that the appellant shall file proof of such service with the Clerk of the Supreme Court, Dutchess County, within 10 days of the date of service; and it is further,

Ordered that no further proceedings shall be taken against the plaintiff until the expiration of 30 days after service upon him, as specified herein, of a copy of this decision and order.

In light of the plaintiff’s failure to remain in contact with the appellant law firm or to respond to any of its correspondence, and his failure to pay his retainer fee or a fee for legal services rendered, the Supreme Court improvidently exercised its discretion in denying the appellant’s motion to be relieved as counsel for the plaintiff (see, Code of Professional Responsibility DR 2-110 [c] [1] [d], [fi [22 NYCRR 1200.15 (c) (1) (iv), (vi)]; Cashdan v Cashdan, 243 AD2d 598; Matter of Lenk, 218 AD2d 802). Ritter, J. P., Krausman, McGinity and Smith, JJ., concur.