Tremont Electric, Inc. v. Rampinelli Electric Co.

142 Misc. 2d 80, 536 N.Y.S.2d 383, 1988 N.Y. Misc. LEXIS 774

• Court: New York Supreme Court
• Decided: December 16, 1988
• Status: Published

Opinion

OPINION OF THE COURT

Harold Tompkins, J.

Counsel for defendants Rampinelli and Rampinelli Electric Company, Inc. (Rampinelli Electric) seek leave to withdraw as the attorney for these defendants since he has not been paid. Ordinarily this court would permit withdrawal since counsel has a right to payment for his services (Cullen v Olins Leasing, 91 AD2d 537 [1st Dept 1982], appeal dismissed 61 NY2d 867 [1984]). However, in this case, a petition for involuntary bankruptcy has been filed against defendant Rampinelli Electric. Pursuant to 11 USC § 362, all proceedings are automatically stayed from being commenced or continued against the debtor, Rampinelli Electric (see, Robins Co. v Piccinin, 788 F2d 994 [4th Cir 1986]; Matter of Baldwin-United Corp. v Named Defendants, 48 Bankr 901 [SD Ohio 1985]). The stay enables the Bankruptcy Court to obtain information concerning assets and liabilities of the debtor. Continuation of proceedings against the debtor might result in additional liability and thereby deplete the estate.

Counsel for Rampinelli Electric may seek relief from the automatic stay in the Bankruptcy Court (11 USC § 362 [d]; see also, In re River Hills Apts. Fund, 813 F2d 702 [5th Cir 1987]).

The motion is granted to relieve counsel from representing defendant Richard Rampinelli since the stay only affects the debtor (see, Matter of S. I. Acquisition v Eastway Delivery Serv., 817 F2d 1142 [5th Cir 1987]).

The action is stayed, in this court against defendant Richard Rampinelli for 30 days to allow him to obtain new counsel (CPLR 321). The motion to be relieved as counsel for defendant Rampinelli Electric is denied without prejudice to a further application after dissolution of the bankruptcy stay.