Opinion
Index No. 500623/2023 Seqs. No. 001
09-10-2024
Janco Rey Anaya, Plaintiff, v. RXR 2413 Third Owner LLC, LRC Construction LLC, Yellow Hat Construction Inc., Platinum Services NY LLC, and State Contracting Corp, of NY, Defendants. RXR 2413 Third Owner LLC and LRC Construction LLC, Third-Party Plaintiff, v. King Contracting Group NY, Inc., Third-Party Defendants.
Unpublished Opinion
DECISION/ORDER
DEVIN P. COHEN, Justice
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion
Papers Numbered
Notice of Motion and Affidavits Annexed .... __
Order to Show Cause and Affidavits Annexed. 1
Answering Affidavits.................... 2
Replying Affidavits........................... __
Exhibits............................... Var.
Other.......................................__
Upon the foregoing papers, Elefterakis, Elefterakis &Panek (Elefterakis)'s order to show cause (OSC) to be relieved as counsel (Seq. 001) is decided as follows:
Generally, an attorney is permitted to withdraw as counsel upon "such notice ... as the court may direct," after a reasonable "showing that good cause exists to end the attorney client relationship" and that the motion is not being made as a tactic to delay a hearing or trial (CPLR 321 [b] [2]; Matter of Cassini, 182 A.D.3d 13,40 [2d Dept 2020]; see also Rivardeneria v New York City Health and Hospitals Corp., 306 A.D.2d 394 [2d Dept 2003]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (Bank of Am., N.A. v Chadha, 214 A.D.3d 695, 695 [2d Dept 2023]). Break-downs of the attorney-client relationship, failure of cooperation by a client, and actions or requests by clients that would cause the attorney to violate the Rules of Professional Conduct by continuing representation, among other reasons, serve as good cause for ending the attorney-client relationship (see Farage v Ehrenberg, 124 A.D.3d 159, 165 [2d Dept 2014]; see also Green v Gasparini, 24 A.D.3d 505 [2d Dept 2005]).
Here, Elefterakis served the instant OSC upon the plaintiff individually and upon defense counsel as directed by the court. Plaintiff individually did not oppose the motion. The note of issue has not been filed and the case is not on the trial calendar. However, defendant Platinum Services NY LLC (Platinum) filed written opposition to this motion.
As an initial matter, it is not clear that defendant has standing to oppose plaintiffs counsel's motion, as the motion is made against the plaintiff individually, not the defendant, and defendant would not be "aggrieved" as defined by the Appellate Division if this motion were granted (see Mixon v TBV, Inc., 76 A.D.3d 144, 156-157 [2d Dept 2010]). Moreover, defendants do not actually state opposition to Elefterakis withdrawing as counsel per se, but rather objects to the justification Elefterakis has offered for withdrawal, objects to Elefterakis' request to disclose additional information in camera if it is required, and demands that the relief requested be conditioned upon the exchange of attorney-client communications and attorney records.
Defendant is incorrect that allowing Elefterakis to provide additional details or information in camera is impermissible. "Where withdrawal may be accomplished simply on the basis of counsel's statement that professional considerations require it, no more should be disclosed" (NYS Bar Ethics Opinion 1057 [6/5/2015] at ¶ 14). Where withdrawal cannot be so accomplished, the court may conduct an in camera hearing to assess the validity of counsel's request (id. at ¶ 15). This practice is permitted to "prevent a party from being prejudiced by the application of counsel to withdraw" (ISC Holding AG v Nobel Biocare Investments, N.V., 759 F.Supp.2d 289,294 [SDNY 2010] \aff'd sub nom. ISC Holding AG v Nobel Biocare Fin. AG, 688 F.3d 98 (2d Cir 2012)]). "A judge may initiate or consider any ex parte communications when authorized by law to do so" (NY Rules of Chief Administrative Judge § 100.3 [e]).
However, notwithstanding the propriety of an in camera showing, Elefterakis represented to the court in its moving papers and in the presence of opposing counsel that communication with the client had broken down completely and made it impossible for counsel to continue to represent plaintiff. This reason satisfies the "good cause" standard for attorney withdrawal. After Elefterakis's representation to the court and counsel, the court neither sought nor accepted ex parte communication in this application.
The remainder of defendant's papers are essentially requests for discovery of attorneyclient communications and other seemingly privileged information. Making affirmative discovery requests in the opposition papers to a motion to be relieved as counsel is procedurally improper for at least two reasons. First, the request is made without the notice ordinarily required by a motion requesting affirmative relief (CPLR 2215; see Fried v Jacob Holding, Inc., 110 A.D.3d 56 [2d Dept 2013]). Second, even if the court were inclined, arguendo, to treat the request as a cross-motion in an exercise of discretion, there is no properly executed discovery instrument for the court to enforce (see CPLR 3102).
Finally, defendant's request is improper insofar as it asks the court to condition Elefterakis's withdrawal on a breach of client confidence and/or of a violation of attorney-client privilege. Rule 1.6 (a) prohibits attorneys from "knowingly [revealing] confidential information to the disadvantage of a client or the for the advantage of the lawyer or a third person" absent 1) the consent of the client; 2) the disclosure is "impliedly authorized to advance the best interest of the client"; or 3) the disclosure is permitted by Rule 1.6 (b). None of the permissions in Rule 1.6 (b) apply here. Moreover, attorney-client privilege can only be waived by the client and generally survives the termination of the attorney-client relationship-Elefterakis is therefore prohibited from revealing confidential or privileged information without the consent of the client (see CPLR 4503).
Therefore, Elefterakis' OSC to be relieved as counsel is granted upon the individual plaintiffs default. The action is stayed until November 10, 2024, although the stay shall end earlier if plaintiff retains new counsel (Wells Fargo Bank, N.A. v Kurian, 197 A.D.3d 173 [2d Dept 2021]). This determination is made without prejudice to any legitimate discovery rights parties may have in this or any other properly commenced action.
Counsel shall serve this order upon Janco Rey Anaya by the same means as the underlying OSC within 10 days of the notice of entry, and upon opposing counsel via NYSCEF.
Motion Sequence 002 is adjourned to November 13, 2024, in light of the stay.
Conclusion
Elefterakis' OSC to be relieved (Seq. 001) is granted.
This constitutes the decision and order of the court.