Opinion
Index No. 154857/2012 Motion Seq. No. 001
01-02-2024
DOMINICO R RAMIREZ, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, MICHAEL J VANTASSEL Defendants.
Unpublished Opinion
PRESENT: HON. DENISE M DOMINGUEZ, Justice
DECISION + ORDER ON MOTION
Denise M. Dominguez, Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 were read on this motion to/for ATTORNEY- DISQUALIFY/RELIEVE/SUBSTITUTE/ WITHDRAW.
Upon reading the above listed documents and following oral argument, the motion by Order to Show Cause by Sobo & Sobo, L.L.P., counsel for Plaintiff DOMINICO R RAMIREZ, is granted.
This personal injury matter arises out of a September 8, 2011 motor vehicle accident on St. Nicholas Avenue at or near its intersection with 183rd Street in Manhattan, between the Defendants' vehicle and a vehicle operated by Plaintiff.
This action was commenced on behalf of the Plaintiff by Elefterakis & Elefterakis, P.C. on July 24, 2012 by the filing of the summons and complaint (NYSCEF Doc. #1). A notice of appearance was filed on May 24, 2016 by Sobo & Sobo, L.L.P. (NYSCEF Doc. #13). The Note of Issue was filed on December 12, 2019 (NYSCEF Doc. #28). However, in light of what appears to be post-Note of Issue discovery issues related to the Plaintiffs October 1, 2021 third supplemental bill of particulars, a further Status Conference was held on November 24, 2021 (NYSCEF Doc. #31,37). Thereafter, the parties had a virtual settlement conference on March 15, 2022 with Law Clerk, Joan Levenson, Esq.
Sobo & Sobo, L.L.P. now moves by Order to Show Cause: 1) to be relieved as counsel for Plaintiff pursuant to CPLR 321(b)(2); 2) for a charging lien concerning its services and expenses; and 3) for a stay to allow the Plaintiff to retain new counsel. Sobo & Sobo, L.L.P. personally served the Plaintiff with the motion by Order to Show Cause (NYSCEF Doc. 42) and the Plaintiff appeared for before the Court for oral argument.
Upon review, it appears that at the March 15, 2022 settlement conference, the parties agreed to resolve this matter via settlement agreement, in the amount of $35,000. Sobo & Sobo, L.L.P. asserts in the motion and at argument, that at the settlement conference, counsel was in communication with the Plaintiff and secured the Plaintiffs consent to the settlement offer. The Plaintiff does not submit an affirmation in opposition, nor was any argument presented by Plaintiff at oral argument, contradicting the amount of the settlement offer, or that he had consented to the settlement offer at that time.
Sobo & Sobo, L.L.P. also submits that following the settlement conference, a Stipulation of Settlement was prepared by the Defendants' counsel, formalizing the settlement agreement. (NYSCEF Doc. #38). However, the Stipulation of Settlement was not signed by the Plaintiff. Rather, the Plaintiff informed his counsel that he had changed his mind about accepting the settlement offer. The Plaintiff does not submit an affirmation in opposition contradicting Sobo & Sobo, L.L.P.'s position. In fact, at argument, the Plaintiff acknowledged that he no longer wanted to accept the settlement offer.
At oral argument, the Plaintiff advised this Court that he did not agree Sobo & Sobo, L.L.P.'s request to be relieved. To supplement their application, Sobo & Sobo, L.L.P. then provided this Court with further details to support their withdrawal ex parte, without the participation of the appearing Defendants, due to privacy and confidentiality concerns.
"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. Sobo & Sobo, L.L.P. 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 Sobo & Sobo, L.L.P. as counsel for Plaintiff, this matter shall be stayed for 60 days in order for the Plaintiff to 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.
Sobo & Sobo, L.L.P.'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, Sobo & Sobo, L.L.P. 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 Sobo & Sobo, L.L.P. to be relieved as attorney for Plaintiff, DOMINICO R RAMIREZ, is granted upon filing of proof of compliance with the following conditions; and it is further
ORDERED that, within 20 days from entry, Sobo & Sobo, L.L.P. shall serve a copy of this order with notice of entry upon the former client, Plaintiff DOMINICO R RAMIREZ, 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 DOMINICO R RAMIREZ, Sobo & Sobo, L.L.P. 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 DOMINICO R RAMIREZ 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 Sobo & Sobo, L.L.P.'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 DOMINICO R RAMIREZ of the aforesaid notice to appoint a substitute attorney; and it is further
ORDERED that Sobo & Sobo, L.L.P. 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).