Opinion
Index No. 155667/2021 Motion Seq. No. 002
10-28-2022
HAILYN OLIVARES, Plaintiff, v. THE CITY OF NEW YORK, DANIEL HILL, EUGENE MCCARTHY, JESSE TURNER, SCOTT SHANLEY, GERALD WILLIAMS Defendant.
Unpublished Opinion
MOTION DATE 10/26/2022
PRESENT: HON. LESLIE A. STROTH Justice
DECISION + ORDER ON MOTION
LESLIE A. STROTH J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 16,'17, 18, 19, 20, 21,22 were read on this motion to/for
ATTORNEY -DISQUALIFY/RELIEVE/SUBSTITUTE/WITHDRAW .
Corporation Counsel moves for an order pursuant to CPLR 321 to be relieved as counsel for individual defendant Daniel Hill, a New York City employee, and staying all discovery for a period of sixty (60) days to allow Mr. Hill to retain new counsel. The underlying matter involves purported civil rights violations arising out of plaintiff s denial of employment benefits.
Pursuant to General Municipal Law (GML) § 50-k (4):
...the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court...arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred.Representation by Corporation Counsel may be declined or withdrawn as a matter of discretion, which shall only be set aside if such decision is determined to be arbitrary and capricious. See Matter of Williams v City of New York, 64 N.Y.2d 800, 802 (1985).
In support of her motion, attorney Jasmine Harris: affirms that upon additional investigation, Corporation Counsel determined that it can no longer represent Mr. Hill pursuant to GML § 50-k (4). Attorney Harris also affirms that she contacted Mr. Hill by mail notifying him that Corporation Counsel is withdrawing as his attorney, indicating that he should promptly seek new counsel, and informing him to contact union counsel. Attorney Harris' affirmation does not contain details as to Corporation Counsel's investigation to avoid prejudicing Mr. Hill's rights. No. opposition has been filed by Mr. Hill or opposing counsel.
The matter was heard on October 26, 2022, at which Attorney Harris and counsel for plaintiff appeared. The Court directed Attorney Harris to provide a confidential supplemental affirmation describing her investigations for in camera review. Plaintiffs counsel did not oppose the submission of such affirmation. Upon receipt of the confidential affirmation in further support of the order to show cause, the Court now finds that Corporation Counsel's decision to withdraw as counsel for Mr. Hill is neither arbitrary nor capricious.
As the additional information provided in the supplemental affirmation would be prejudicial to plaintiff, the Court declines to re-iterate the particulars in the,within motion. Moreover, the Court notes that because this case is in its early stages, discovery is not - complete, and no substantive motion practice has yet ensued, the prejudice resulting from allowing Corporation Counsel to withdraw is minimal.
Therefore, it is
ORDERED that the motion of Corporation Counsel to be relieved as attorney for Daniel Hill is granted upon filing of proof of compliance with the following conditions; and it is further
ORDERED that, within 10 days from entry, said attorney shall serve a copy of this order with notice of entry upon the former client 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 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 plaintiffs intends instead to represent themselves, they shall notify the Clerk of the Part of this decision in writing within said 60-day period; and it is further
ORDERED that any new attorney retained by plaintiffs 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 70 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 70 days after service on the former client 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).
The foregoing constitutes the decision and order of the Court.