Opinion
INDEX NO. 653268/2017
04-03-2019
STARR INDEMNITY & LIABILITY COMPANY, Plaintiff, v. PETROLEUM TANK CLEANERS LTD., 2ND AVENUE SHOWCASE, LTD., ORMONDE EQUITIES, LLC,CM AND ASSOCIATES CONSTRUCTION MANAGEMENT LIMITED LIABILITY COMPANY Defendant.
NYSCEF DOC. NO. 51 PRESENT: HON. JOEL M. COHEN Justice MOTION DATE N/A MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 were read on this motion for ATTORNEY WITHDRAWAL. Upon the foregoing documents, it is
This action was commenced by Starr Indemnity & Liability Company against Defendants Petroleum Tank Cleaners Ltd., 2nd Avenue Showcase, Ltd., Ormonde Equities, LLC, CM and Associates Construction Management Limited Liability Company ("Defendants") on June 15, 2017 seeking a declaration that Defendant Petroleum Tank Cleaners, Ltd. ("PTC") is not entitled to coverage under the Commercial General Liability, Commercial Professional Liability or Professional Liability coverage part of the policy issued by Plaintiff.
Now before the Court is Gabor & Marotta LLC's motion, brought by Order to Show Cause, to be relieved as counsel on behalf of Defendant PTC. Gabor & Marotta LLP, through its attorney Stephanie S. Comas, Esq., explains in February 2019 it was directed to cease working on this matter at the direction of Defendant PTC and to take no further steps in the course of its representation. Comas Affirmation (NYSCEF 43), at ¶2.
For the following reasons, the Court grants counsel's motion to withdraw as attorney of record for Defendant PTC.
Ms. Comas asserts that Defendant directed Gabor & Marotta LLC to cease work on this matter. Despite the direction, PTC has failed to execute a Consent to Change Attorney, necessitating the instant motion. Id., ¶¶2-3.
No parties to this action, including Defendant PTC, submit opposition to this motion.
Relieving counsel from its representation of a party is appropriate where, inter alia, there is adequate evidence showing a breakdown in the attorney-client relationship. Robinson v Friedman Mgt. Corp., 49 A.D. 3d 436, 437 (1 Dep't 2008); see also Bok v Werner, 9 A.D.3d 318 (1 Dep't 2004) (reversing denial of motion to withdraw as counsel in view of counsel's claimed breakdown in relationship with client); see also Rule 1.16(c)(5) of the Rules of Professional Conduct (a lawyer may withdraw from representing a client when: the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees). Given that PTC directed Gabor & Marotta to cease its representation, movant has ostensibly done so. Trial has not yet been scheduled, and, therefore, Defendant PTC should not be prejudiced by a change in counsel.
The Court concludes that Gabor & Marotta LLC has made a sufficient showing of entitlement to withdraw as counsel for Defendant PTC and its motion is Granted. Gabor & Marotta LLC is directed to advise PTC that, as a corporate defendant, it must retain counsel to continue this litigation. See, CPLR §321(a). Gabor & Marotta LLC is directed, however, to comply with its obligation under Rule 1.16(e) of the Rules of Professional Conduct as stated below. It is therefore:
ORDERED that the motion of Gabor & Marotta LLC to be relieved as attorney for Defendant Petroleum Tank Cleaners, Ltd. in this action is granted, subject to the following conditions:
ORDERED that Gabor & Marotta LLC is to comply with its obligation under Rule 1.16(e) of the Rules of Professional Conduct, as applicable to the facts presented, to "take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable laws and rules."; it is further
ORDERED that, within 10 days from entry, Gabor & Marotta LLC is to serve a copy of this order with notice of entry upon Defendant Petroleum Tank Cleaners, Ltd. by email and by hard copy at its 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; it is further
ORDERED that, together with the copy of this order with notice of entry served upon Defendants, 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; it is further
ORDERED that any new attorney retained by Defendant Petroleum Cleaning Tank, Ltd. 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; it is further
ORDERED that no further proceedings may be taken against Defendant Petroleum Cleaning Tank, Ltd. without leave of this court for a period of 40 days after service on Defendant of the aforesaid notice to appoint a substitute attorney; it is further
ORDERED that the departing attorney/firm 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 file a joint letter to the Court, on NYSCEF, advising whether the parties have complied with this Order and are ready to proceed with the remainder of the litigation; and it is further
ORDERED that Plaintiff shall have leave to file a motion for default judgment if Defendant Petroleum Cleaning Tank, Ltd. fails to obtain counsel with the proscribed amount of time; and it is further
ORDERED that all parties are to appear for a Preliminary Conference on May 28, 2019 at 10:30 a.m. in Room 222.
This Constitutes the Decision and Order of the Court. 4/3/2019
DATE
/s/ _________
JOEL M. COHEN, J.S.C.