Opinion
Index No. 150623/2019 Motion Seq. No. 002
01-02-2024
JOHN KOUKOULAS, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, JOHN DOE SAID NAME BEING FICTITIOUS AND UNKNOWN TO THE PLAINTIFF THE PARTY INTENDED BEING THE PERSON WHO OPERATED M34 BUS NO 5825 AT OR NEAR 34TH STREET AND 6TH AVENUE COUNTY OF NEW YORK STATE OF NEW YORK ON OR ABOUT FEBRUARY 6 2018 AT APPROXIMATELY 450PM Defendants.
Unpublished Opinion
DECISION+ ORDER ON MOTION
HON. DENISE M DOMINGUEZ Justice
The following e-filed documents, listed by NYSCEF document number (Motion 002) 29, 30, 31, 32, 33, 34, 35, 36, 37,38, 39, 40,41
ATTORNEY - were read on this motion to/for DISQUALIFY/RELIEVE/SUBSTITUTE/WITHDRAW .
Upon reading the above listed documents and following oral argument, the unopposed motion by Order to Show Cause by Sacco &Fillas LLP, counsel for Plaintiff JOHN KOUKOULAS, is granted.
This personal injury matter arises out of a February 6, 2018 incident at or near the intersection of 34th Street and 6th Avenue, in Manhattan, while the Plaintiff was a passenger on a public bus.
This action was commenced on behalf of the Plaintiff by Sacco &Fillas LLP on January 22, 2019 by the filing of the summons and complaint (NYSCEF Doc. #1). Upon a review of the record, although the last status conference was held on April 27, 2021, discovery is not complete as the Note of Issue has not been filed.
Sacco &Fillas LLP now moves by Order to Show Cause: 1) to be relieved as counsel for Plaintiff pursuant to CPLR 321(b)(2); 2) for a lien concerning its disbursements and reasonable compensation; and 3) for a stay to allow the Plaintiff to retain new counsel. Sacco &Fillas LLP timely served the Plaintiff with the motion by Order to Show Cause by certified mail, return receipt requested (NYSCEF Doc. 38).
At oral argument, Sacco &Fillas LLP provided this Court with details to support their withdrawal as counsel as same were not specifically included in the motion papers due to confidentiality/privacy concerns. Plaintiff did not timely appear for oral argument, but appeared after the Court concluded argument and after counsel for Sacco &Fillas LLP had departed. The Court inquired whether the Plaintiff wanted the opportunity to present his position to the Court; the Plaintiff declined the Court's offer for additional time and was advised that the motion would therefore be submitted for a decision.
"An 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." (CPLR 321(2)). "[A]n attorney may withdraw as counsel of record upon a showing of good and sufficient cause, and reasonable notice to the client. (Mason v. MTA New York City Transit, 38 A.D.3d 258, 832 N.Y.S.2d 153, 154 [1st Dept 2007]). Upon review, and following oral argument, it is clear that there are irreconcilable differences and that the attorney-client relationship cannot continue. Sacco &Fillas LLP has demonstrated good and sufficient cause to be relieved and has shown due notice to Plaintiff of the within application. Accordingly, the motion is granted.
In light of the withdraw of Sacco &Fillas LLP as counsel for Plaintiff, this matter shall be stayed for 60 days in order for the Plaintiff to formally retain new counsel, or to advise this Court that Plaintiff will appear in this matter pro se and register with the New York State Courts Electronic Filing system.
Sacco &Fillas LLP's request to assert a charging lien for disbursements and attorneys' fees is also granted. "Under Judiciary Law § 475, a charging lien automatically comes into existence, without notice or filing, upon commencement of the action, and is measured by the reasonable value of the attorney's services in the action, unless fixed by agreement. Resnick v. Resnick, 24 A.D.3d 238, 239, 806 N.Y.S.2d 200, 201 [1st Dept 2005]). "[W]here an attorney's representation terminates and there has been no misconduct, no discharge for just cause and no unjustified abandonment by the attorney, the attorney's right to enforce the statutory charging lien is preserved...." (Klein v. Eubank, 87 N.Y.2d 459, 464, 663 N.E.2d 599, 601 [1996]). "Generally, however, if an attorney is discharged without cause he will be allowed a charging lien upon the proceeds of the lawsuit, the amount to be determined on a quantum meruit basis at the conclusion of the case." (People v. Keeffe, 50 N.Y.2d 149,156,405 N.E.2d 1012,1015 [1980]). Upon review, Sacco &Fillas LLP is entitled to reimbursement for reasonable value of its attorneys' services, to be determined at the conclusion of this matter.
Accordingly, it is hereby
ORDERED that the motion of Sacco &Fillas LLP to be relieved as attorney for Plaintiff, JOHN KOUKOULAS, is granted upon filing of proof of compliance with the following conditions; and it is further
ORDERED that, within 20 days from entry, Sacco &Fillas LLP shall serve a copy of this order with notice of entry upon the former client, Plaintiff JOHN KOUKOULAS, at their last known address by regular and certified mail, return receipt requested, and upon the attorneys for all other parties appearing herein via 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 Plaintiff JOHN KOUKOULAS, Sacco &Fillas LLP shall also forward a notice directing the Plaintiff to appoint a substitute attorney within 60 days from the date of the mailing of the notice and the Plaintiff shall comply therewith, except that, in the event the Plaintiff intends instead to represent himself, he shall notify the Clerk of this Part of this decision in writing within said 60-day period and shall register with the New York State Courts Electronic Filing system; and it is further
ORDERED that any new attorney retained by Plaintiff JOHN KOUKOULAS shall file a notice of appearance with the Clerk of the General Clerk's Office and the Clerk of the Part within 60 days from the date the notice to retain new counsel is mailed; and it is further
ORDERED that Sacco &Fillas LLP's charging lien is preserved until such time as a Court, upon settlement or judgment, may hear and determine the reasonable value of attorney's services provided; and it is further
ORDERED that no further proceedings may be taken in this matter without leave of this court for a period of 60 days after service on Plaintiff JOHN KOUKOULAS of the aforesaid notice to appoint a substitute attorney; and it is further
ORDERED that Sacco &Fillas LLP shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office 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).