Opinion
Index No. 650805/2019
07-25-2022
Geoffrey Adler, Plaintiff, v. David Mitchell, MITCHELL HOLDINGS LLC, Defendant.
Unpublished Opinion
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 39, 40, 41, 42, 43, 44 were read on this motion to WITHDRAW AS COUNSEL.
In motion sequence 003, Cermele & Wood LLP, counsel for defendants David Mitchell and Mitchell Holdings LLC (defendants) move, by order to show cause, pursuant to CPLR §321(b)(2), for an order granting leave to withdraw as counsel for the nonpayment of legal fees.
This action was commenced on February 7, 2019, by plaintiff Geoffrey Adler who filed a Summons with Notice. A Verified Complaint was filed by plaintiff on July 24, 2019, which asserted claims for breach of contract and unjust enrichment regarding the nonpayment of salary, profit shares, and acquisition fees in connection with real estate deals which plaintiff allegedly sourced. Defendants filed an answer to plaintiff's complaint on January 28, 2020.
Michael R. Wood, Esq., an attorney at Cermele & Wood LLP, submits an affirmation in support of the order to show cause dated May 23, 2022, and affirms, under penalties of perjury, that "[a]ll the services rendered by this firm in this action were specifically authorized by Defendants. However, they have failed to pay in full for their legal fees and expenses that have been invoiced over the past 28 months. Nor have Defendants given any indication that they will pay those fees or any further fees that this firm may incur on a going-forward basis" (NYSCEF doc. no. 40, para. 5). The Affirmation further states that "[d]efendants have been advised that if legal fees owed to this firm are not paid in full, their representation would not continue. However, Defendants have failed to pay their legal fees" (id., para. 7).
Notice of counsel's requested relief was provided to defendants on May 24, 2022, by overnight delivery in an official federal express depository within the State of New York (see NYSCEF doc. no. 43).
Plaintiff submits opposition to Defendant's Counsel's Order to Show Cause only to the extent of requesting no more than 30 days of a stay for defendants to retain new counsel due to the age of the case.
CPLR 321 (b) (2) provides:
"[a]n attorney of record 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."
However, an attorney's right to withdraw as counsel is not absolute (s ee Matter of Jamieko A., 193 A.D.2d 409, 410 [1st Dept 1993]). An attorney may withdraw "only...upon reasonable notice to the client" (Vargas v Go. W Entertainment, Inc., 28 Misc.3d 1223 (A), 2010 NY Slip Op 51476 (U), * 4 [Sup Ct, NY County 2010][internal quotation marks and citations omitted]).
Cermele & Wood LLP's motion to withdraw as counsel for defendants David Mitchell and Mitchell Holdings LLC is granted. Cermele & Wood have demonstrated a breakdown of the attorney-client relationship. Defendants engaged the subject law firm, agreed to compensate the firm's invoices promptly upon receipt, and that despite the invoices, defendants have failed to pay such fees in full even though they have not disputed the charges (see Weiss v Spitzer, 46 A.D.3d 675, 675 [2d Dept 2007] [holding "[a]n attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees"]; Mars Prods. Corp. v U.S. Media Corp., 198 A.D.2d 175 [1st Dept 1993][holding "[t]he order granting counsel leave to withdraw was not an abuse of discretion, since there had been a long history of nonpayment by the client"]; Galvano v Galvano, 193 A.D.2d 779, 780 [2d Dept 1993] [holding "[i]t is well settled that an attorney will be permitted to withdraw from employment where a client refuses to pay reasonable fees"]).
Accordingly, it is
ORDERED that the Order to Show Cause to Withdraw as Counsel filed by Cermele & Wood LLP, counsel for defendants David Mitchell and Mitchell Holdings LLC (motion sequence 003), is granted; and it is further
ORDERED that, within 10 days from entry, Cermele & Wood LLP shall serve a copy of this order with notice of entry upon both defendants at their last known address by certified mail, return receipt requested, and upon the attorneys for all other parties appearing 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 David Mitchell and Mitchell Holdings LLC, moving counsel shall forward a notice directing defendants to appoint a substitute attorney within 30 days from the date of the mailing of the notice and the client shall comply therewith, except that should David Mitchell intend instead to represent himself, he shall notify the Clerk of the Part of this decision in writing within the said 30-day period; and it is further
ORDERED that any new attorney retained by David Mitchell and Mitchell Holdings LLC shall file a notice of appearance with the Clerk of the General Clerk's Office (60 Centre Street, Room 119) and the Clerk of the Part 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 David Mitchell and Mitchell Holdings LLC without leave of this court for a period of 45 days after service on all parties 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 further
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); and it is further
ORDERED that all parties are to appear for a virtual Status Conference via Microsoft Teams in this matter on September 6, 2022, at 11:00 a.m.