Ling P. Cheng, Plaintiff, v. BELLEVUE HOSPITAL CENTER (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34 were read on this motion to WITHDRAW AS COUNSEL.

By Order to Show Cause, plaintiff's counsel, Sacco & Fillas, LLP, moves pursuant to CPLR § 321(b)(2) for an order granting leave to withdraw as counsel for plaintiff Ling P. Cheng ("plaintiff"), awarding the firm a charging lien and lien for disbursements and reasonable compensation for services rendered, staying the action for sixty days to permit plaintiff to obtain substitute counsel, and granting such other and further relief as the court deems just and proper.

Defendants New York City Health and Hospitals Corporation and Bellevue Hospital Center (collectively, "defendants") do not oppose counsel's request to be relieved. Defendants, however, request that the court direct plaintiff to appear by new counsel or pro se within sixty days, schedule a conference immediately thereafter, and issue a self-executing order dismissing the action with prejudice should plaintiff fail to appear by counsel or pro se on the scheduled date.

BACKGROUND AND PROCEDURAL HISTORY

This action arises from allegations that plaintiff sustained serious injuries while a patient at Bellevue Hospital Center on October 19, 2022. According to the complaint and motion papers, plaintiff allegedly fell while under defendants' care and treatment, resulting in head injuries and neurological impairments.

The record reflects that plaintiff's husband, Yuxiang Min ("Mr Min"), retained Sacco & Fillas, LLP on plaintiff's behalf and actively participated in the early stages of the litigation. Mr. Min appeared on plaintiff's behalf at a General Municipal Law § 50-h hearing conducted on February 24, 2023. Thereafter, plaintiff commenced this action sounding in medical malpractice and related claims.

The motion papers further establish that Mr. Min died on December 26, 2023. Following his death, communications concerning the litigation were conducted primarily through plaintiff's sister, Judy P. Cheng ("Ms. Cheng"), who resides in California near the facility where plaintiff currently resides. Counsel represents that plaintiff presently resides at Gilroy Healthcare Center in Gilroy, California.

The record further suggests that plaintiff suffers from significant neurological impairments. Counsel states that continued representation has become "untenable due to an irreconcilable breakdown in communications as well as factors which are better discussed in camera." Counsel additionally represents that prosecution of the action has become extremely difficult and nearly impossible.

Notably absent from the filed record, however, is any evidence that plaintiff has executed a power of attorney, health care proxy, or other advance directive authorizing another individual to act on her behalf. Likewise, there is no indication within the filed record that any guardian ad litem has been appointed pursuant to CPLR article 12, that any guardian has been appointed pursuant to Mental Hygiene Law article 81, or that any other legally recognized fiduciary presently exists to represent plaintiff's interests in connection with this litigation.

The court notes that, on the return date of the Order to Show Cause, plaintiff's sister, Ms. Cheng, appeared before the court remotely from California. Ms. Cheng advised the court that plaintiff presently resides in a skilled nursing facility and represented that she has been making decisions concerning plaintiff's care and well-being at that facility. Ms. Cheng, laboring through tears then advised the court that while plaintiff was previously able to do simple math equations when Ms. Cheng endeavored to test plaintiff's mental acuity, plaintiff's condition has deteriorated in the last few weeks.

At the court's direction, a representative of the facility likewise appeared and provided information concerning plaintiff's present condition and living circumstances. The court appreciates the efforts undertaken by Ms. Cheng on behalf of her sister and does not doubt that she has acted out of genuine concern for plaintiff's welfare during what appears to have been an extraordinarily difficult period for the family.

The proceedings on the return date nevertheless revealed a significant unresolved issue concerning plaintiff's legal representation. Although Ms. Cheng represented that she has been involved in decisions affecting plaintiff's care, plaintiff's counsel questioned whether a purported power of attorney relied upon by Ms. Cheng is presently valid and legally sufficient to authorize litigation decisions on plaintiff's behalf. Moreover, no application has been made to substitute Ms. Cheng into this action in a representative capacity, no guardian ad litem has been appointed pursuant to CPLR article 12, and no order has been presented establishing that Ms. Cheng possesses authority to prosecute, settle, discontinue, or otherwise direct the course of this litigation.

Accordingly, while the court recognizes Ms. Cheng's substantial involvement in plaintiff's affairs and her evident commitment to plaintiff's well-being, the official record presently before the court establishes only that Ms. Cheng is a concerned and actively involved member of plaintiff's family. The record does not presently establish that she is plaintiff's legally authorized representative for purposes of this litigation. The court therefore cannot simply assume that Ms. Cheng possesses authority to make binding litigation decisions on plaintiff's behalf.

At the same time, the proceedings on the return date suggested a potentially practical and humane path forward. The court questioned whether Ms. Cheng—or another appropriate individual—could be formally authorized to act in a representative capacity so that plaintiff's interests may continue to be protected and meaningful decisions concerning the litigation may be made by an individual vested with lawful authority to do so.

PARTIES' CONTENTIONS

Sacco & Fillas, LLP contends that good and sufficient cause exists to permit withdrawal pursuant to CPLR § 321(b)(2). Counsel asserts that an irreconcilable breakdown in communications has rendered continued representation untenable and requests permission to withdraw together with a sixty-day stay to permit plaintiff to obtain substitute counsel.

Defendants do not oppose withdrawal. Defendants nevertheless contend that this matter has been delayed for an extended period, that significant discovery remains outstanding, and that they have been prejudiced by their inability to obtain records and proceed with discovery. Defendants therefore request that plaintiff be directed to appear by substitute counsel or pro se within sixty days and that the Court issue a self-executing dismissal order should plaintiff fail to do so.

DISCUSSION

An attorney of record may withdraw from representation only upon leave of court and upon a showing of good and sufficient cause (CPLR § 321[b][2]). Whether to permit withdrawal rests within the sound discretion of the trial court (Winters v Rise Steel Erection Corp., 231 AD2d 626, 626 [2d Dept 1996]). New York courts have consistently recognized that an irreconcilable breakdown in the attorney-client relationship may constitute sufficient grounds to permit withdrawal (see Cashdan v Cashdan, 243 AD2d 598, 599 [2d Dept 1997]; Lake v M.P.C. Trucking Inc., 279 AD2d 813, 814 [3d Dept 2001]).

Were this an ordinary case involving a competent client who no longer communicates with counsel or whose relationship with counsel had otherwise deteriorated, the court would have little difficulty granting the application. This case, however, presents concerns that are fundamentally different from those ordinarily implicated by a CPLR § 321(b)(2) motion.

The motion papers suggest that plaintiff suffers from serious neurological impairments and currently resides in a nursing facility. The court further notes that the individual who historically communicated with counsel concerning plaintiff's claims—her husband, Mr. Min—is deceased. Although plaintiff's sister, Ms. Cheng, has apparently attempted to assist plaintiff and communicate with counsel, there is no evidence before the court establishing that Ms. Cheng possesses legal authority to make litigation decisions on plaintiff's behalf.

That distinction is critical.

Familial relationship alone does not confer authority to prosecute, discontinue, settle, compromise, or otherwise control another person's legal claims. New York law requires that litigation decisions be made either by the litigant herself or by an individual vested with legally recognized authority to act on the litigant's behalf. Where a litigant lacks capacity to adequately protect her own interests, CPLR article 12 provides the mechanism by which the court may ensure that such interests remain protected.

CPLR§ 1201 provides that a person judicially declared incompetent, or a person otherwise incapable of adequately prosecuting or defending his or her rights, shall appear by a guardian ad litem. CPLR § 1202(a) authorizes the court to appoint a guardian ad litem at any stage of the action whenever it appears necessary for the protection of a litigant's rights.

The Court of Appeals has long recognized that trial courts possess both broad authority and a corresponding obligation to safeguard the interests of litigants who may be unable to adequately protect themselves (see Sengstack v Sengstack, 4 NY2d 502, 509 [1958]).

The present record raises precisely such concerns.

Importantly, the alleged "breakdown in communication" identified by counsel does not appear, at least on the present record, to arise from any affirmative conduct by plaintiff herself. Rather, it appears to arise largely from plaintiff's medical condition and the absence of any legally authorized representative capable of making litigation decisions on her behalf. If that is so, the court must proceed with caution.

The court is mindful that counsel should not be compelled indefinitely to continue representation where good cause for withdrawal exists. At the same time, permitting immediate withdrawal without first ensuring that plaintiff's interests are protected would risk leaving a potentially incapacitated litigant wholly unrepresented and unable to protect her rights.

Indeed, if the court were simply to relieve counsel and direct plaintiff to retain substitute counsel within sixty days, the court would effectively be requiring an apparently neurologically impaired nursing-home resident—who may lack the capacity to make legal decisions—to undertake tasks that she may be incapable of performing. Such a result would be inconsistent with the protective purposes embodied in CPLR article 12.

The court is equally unpersuaded by defendants' request for a self-executing dismissal order. Although defendants understandably cite delays in discovery and prejudice arising from those delays, dismissal remains a drastic remedy that should be imposed only where the record demonstrates willful neglect, contumacious conduct, or abandonment of the action (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; Arts4All, Ltd. v Hancock, 54 AD3d 286, 286 [1st Dept 2008]).

No such showing has been made here.

The present record does not establish that plaintiff has abandoned her claims. To the contrary, the record suggests that any inability to prosecute the action may stem from the very neurological injuries and impairments that form a central component of the allegations underlying the lawsuit itself. Under such circumstances, dismissal would be premature and inconsistent with the court's obligation to ensure that a potentially incapacitated litigant receives appropriate protection before forfeiting substantial rights.

Accordingly, the court concludes that the prudent and legally appropriate course is to deny counsel's withdrawal application until the threshold issue of plaintiff's capacity and representation can be properly addressed. The court's conclusion is informed not only by the procedural requirements of CPLR articles 12 and 32, but also by broader principles of access to justice that have long animated New York jurisprudence.

Our civil justice system rests upon the premise that legal rights have meaning only if there exists a fair mechanism through which those rights may be asserted and protected. That principle assumes particular importance where a litigant's ability to advocate for herself has been compromised by illness, disability, injury, or incapacity. Courts have long recognized that the law must be especially vigilant when dealing with individuals who may lack the practical ability to safeguard their own interests (see Sengstack, 4 NY2d at 509)

The court is mindful that plaintiff comes before this court not merely as a litigant but as an individual who, according to the record presently before the court, may be suffering from significant neurological impairment and who resides in a skilled nursing facility thousands of miles from the forum in which her claims are pending. The very injuries that allegedly form the basis of this lawsuit may also have diminished her ability to participate meaningfully in the litigation. To permit withdrawal under such circumstances without first ensuring the existence of a legally authorized representative would risk creating a circumstance in which plaintiff's alleged incapacity becomes the mechanism through which her claims are extinguished. Fundamental fairness counsels against such a result.

The court does not suggest that counsel must continue indefinitely in a representation that has become untenable. Nor does the court minimize defendants' legitimate interest in bringing this matter to a timely resolution. Rather, the court seeks to chart a practical path forward that protects all interested parties while ensuring that plaintiff's rights are not forfeited solely because no legally authorized decision-maker presently exists.

The court therefore concludes that the immediate priority is not determining whether this litigation should proceed, settle, or be discontinued. Instead, the immediate priority is determining who possesses lawful authority to make those decisions on plaintiff's behalf. Until that question is answered, neither the court nor the parties can be assured that any litigation decision reflects plaintiff's wishes, interests, or legal rights.

The court further notes that there may be several practical avenues available to address this issue. A family member may possess authority that has not yet been disclosed to the court. Plaintiff may have executed advance directives before the onset of her present condition. A family member, such as Ms. Cheng, may seek appointment as plaintiff's legal representative. Alternatively, a neutral guardian ad litem may be appointed upon counsel's petition to the court, following diligent efforts to locate a suitable candidate. The court expresses no preference as to which avenue is ultimately pursued. What matters is that a legally recognized representative be identified or appointed so that plaintiff's interests may be protected and the litigation may proceed in an orderly fashion.

The court views counsel's present role not as that of a permanent representative, but as a temporary steward charged with ensuring that the transition from attorney-client representation to legally authorized substitute decision-making occurs in a manner that protects plaintiff's interests and preserves the integrity of the judicial process. Such a requirement is neither punitive nor extraordinary. Rather, it reflects the court's obligation to ensure that a potentially incapacitated litigant is not left without a voice in litigation affecting substantial legal rights.

The court therefore directs counsel to provide information sufficient to permit the court to determine whether plaintiff possesses the capacity to prosecute this action and, if not, whether a guardian ad litem or other legally authorized representative should be appointed. Such a procedure appropriately balances counsel's legitimate concerns regarding continued representation with the court's obligation to safeguard the interests of a litigant who may be incapable of protecting herself.

Accordingly, it is hereby

ORDERED that determination of the motion of Sacco & Fillas, LLP to withdraw as counsel is denied without prejudice to renewal pending further order of this court; and it is further

ORDERED that within forty-five (45) days of service of this decision and order with notice of entry, Sacco & Fillas, LLP shall conduct a reasonable inquiry concerning plaintiff's present legal capacity and the existence of any legally authorized representative, and shall prepare and submit a comprehensive written status report addressing each of the issues identified herein; and it is further

ORDERED that such written report shall specifically address:

(a) whether plaintiff possesses sufficient capacity to direct the litigation;

(b) whether plaintiff has executed any power of attorney, health care proxy, advance directive, conservatorship designation, guardianship designation, or similar instrument;

(c) whether any individual presently possesses legal authority to act on plaintiff's behalf;

(d) whether any family member or other appropriate individual is willing and able to seek appointment as guardian ad litem pursuant to CPLR § 1201 and CPLR § 1202 or otherwise serve as plaintiff's representative;

(e) whether Judy P. Cheng possesses any presently effective legal authority to act on plaintiff's behalf and, if so, the nature and source of that authority;

(f) whether Judy P. Cheng, or any other appropriate individual, may be appointed or substituted in a representative capacity for purposes of this litigation; and

(g) what specific steps have been undertaken to secure a legally authorized representative capable of making litigation decisions on plaintiff's behalf; and it is further

ORDERED that the written report shall be reduced to affidavit or affirmation form and shall fully answer each of the foregoing questions to the greatest extent reasonably possible based upon counsel's investigation; and it is further

ORDERED that the written report shall be uploaded to NYSCEF and simultaneously submitted to the Part by electronic mail at SFC-Part65@nycourts.gov, with all counsel of record and all parties entitled to notice copied on such submission; and it is further

ORDERED that, to the extent counsel's investigation reveals disputed facts, unresolved issues of capacity, questions concerning the validity or scope of any purported power of attorney, the need for the appointment of a guardian ad litem, or any other issue requiring judicial intervention, counsel shall supplement the written report through an appropriate application made by Order to Show Cause seeking such relief as may be necessary and appropriate under the circumstances; and it is further

ORDERED that any such Order to Show Cause shall include all relevant supporting documentation, identify any proposed representative, guardian ad litem, attorney-in-fact, or fiduciary, and set forth a proposed framework by which plaintiff's interests may continue to be protected and this litigation may proceed in an orderly manner; and it is further

ORDERED that the court expects counsel, as plaintiff's current attorneys of record, to make reasonable efforts to facilitate the identification or appointment of a legally authorized representative so that plaintiff's interests remain protected and a responsible decision-maker may be identified to chart an appropriate path forward in this litigation; and it is further

ORDERED that if counsel determines that plaintiff lacks capacity to adequately prosecute this action and that no legally authorized representative presently exists, counsel shall, within sixty (60) days of service of this decision and order with notice of entry, either (i) move for the appointment of a guardian ad litem pursuant to CPLR § 1201 and CPLR § 1202, or (ii) demonstrate good cause why such relief is unavailable or inappropriate; and it is further

ORDERED that any proposed guardian ad litem application shall identify the proposed representative, describe that individual's relationship to plaintiff, explain why the appointment would be in plaintiff's best interests, and provide such additional information as may assist the court in determining the propriety of the appointment; and it is further

ORDERED that upon the appointment or identification of a legally authorized representative, counsel shall promptly confer with such representative concerning the future prosecution, settlement, discontinuance, or other disposition of this action and shall thereafter advise the court regarding whether its application to withdraw remains necessary; and it is further

ORDERED that all proceedings in this action, including discovery, are stayed pending further order of the court; and it is further

ORDERED that defendants' request for a self-executing order of dismissal is denied without prejudice to renewal following the appointment or identification of a legally authorized representative and the issuance of further case-management directives by the court; and it is further

ORDERED that the branches of the motion seeking determination of counsel's charging lien, retaining lien, and entitlement to fees are denied without prejudice to renewal upon determination of the withdrawal application; and it is further

ORDERED that the caption shall be amended, if appropriate, following the appointment or identification of a legally authorized representative so that the individual authorized to act on plaintiff's behalf may appear in a representative capacity in accordance with applicable law; and it is further

ORDERED that counsel shall appear for an in-person status conference in Room 308 of the courthouse located at 80 Centre Street, New York, New York on Wednesday September 2, 2026, at 10:00 AM, at which time the court will review the progress of efforts to secure lawful representation for plaintiff and establish a schedule for the orderly continuation of the litigation; and it is further

ORDERED that the court shall generate and transmit a Microsoft Teams link to enable the virtual appearance of Judy P. Cheng and a representative from the Gilroy Healthcare Center in Gilroy, California.

This constitutes the decision and order of the court.

DATE 6/16/2026

HASA A. KINGO, J.S.C.

Hasa A. Kingo, J.