CHEN v. NEW YORK CITY REGIONAL (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 010) 383, 384, 385, 386, 387 were read on this motion to/for ATTORNEY - DISQUALIFY/RELIEVE/SUBSTITUTE/WITHDRAW.

In motion sequence 010, Morrison & Cohen LLP, counsel for plaintiffs Huang Gui Ming, Shi Bing, Fang Taiqing, Ma Jifei and Ye Liang, move, pursuant to CPLR § 321(b)(2), for an order granting leave to withdraw as counsel.

Howard S. Wolfson, Esq., an attorney at Morrison Cohen LLP, submits an affirmation dated May 3, 2022. Counselor Wolfson affirms, under penalty of perjury, that Morrison Cohen LLP seeks to withdraw as counsel for plaintiffs Huang Gui Ming, Shi Bing, Fang Taiqing, Ma Jifei and Ye Liang “because they have declined to continue to pay the Firm's attorney's fees and bear the costs necessary to continue as plaintiffs in this action” (NYSCEF doc. no. 384, para 5). He further affirms that “[t]he Firm has advised each of the five Affected Plaintiffs multiple times that it would be making this motion to withdraw as their counsel, the last time being on April 26, 2022. In response to the Firm's e-mails, none of the five affected plaintiffs have informed us that they want to continue as a plaintiff in this action and pay the firm's fees” (NYSCEF doc. no. 384, para. 10).

Morrison Cohen LLP requests that this Court stay all proceedings in this action pending adjudication of this motion and, upon granting permission for the firm to withdraw, staying all proceedings in this action for a period of no less than thirty days so that the subject plaintiffs can determine whether to retain new counsel or proceed pro se.

In partial opposition, defendants New York City Regional Center LLC, George L. Olsen, Paul Levinsohn, and nominal defendant The New York City East River Waterfront Development Fund, L.L.C., contend that while a 30-day stay of proceedings with respect to the affected plaintiffs would be unobjectionable, defendants request that any order in connection with the motion make clear that there is no stay of proceedings as to any other parties, including the remaining plaintiffs who are not the subject of the motion and whose depositions should proceed without further delay. These defendants further request that if any of the affected plaintiffs do not retain new counsel or appear on behalf of himself or herself following the 30-day stay of proceedings and agree to appear for a deposition pursuant to the court's order, that the affected plaintiff be dismissed with prejudice.

CPLR 321 (b) (2) provides:

“[a]n 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.”

This Court has held that “an attorney may withdraw “only ․ upon reasonable notice to the client” (Vargas v Go W. Entertainment, Inc., 28 Misc 3d 1223 (A), 2010 NY Slip Op 51476 (U), * 4 [Sup Ct, NY County 2010][internal quotation marks and citation omitted]).

Here, the Order to Show Cause signed by this Court states that it is “ORDERED, that service of a copy of this Order to Show Cause together with the papers upon which it is based, shall be deemed good and sufficient service: (a) as to the Affected Plaintiffs by e-mail on or before the 5th day of May, 2022 and (b) as to all other parties via electronic filing ․” (NYSCEF doc. no. 387).

Upon review of the affirmation of Howard S. Wolfson and the “Memorandum of Law in Support of Morrison Cohen LLP's Motion to Withdraw as Counsel for Certain Plaintiffs,” the Court finds that the papers submitted are unclear whether Morrison Cohen LLP served Huang Gui Ming, Shi Bing, Fang Taiqing, Ma Jifei and Ye Liang via email as directed by the May 3, 2022 order. There is insufficient evidence before the court that the affected plaintiffs received proper notice of the Order to Show Cause and Motion to Withdraw.

Accordingly, it is hereby

ORDERED that Morrison Cohen LLP submit proof of service of the Order to Show Cause and accompanying papers to this court by supplemental affirmation within 20 days; and it is further

ORDERED that Morrison & Cohen LLP's motion to withdraw as counsel for plaintiffs Huang Gui Ming, Shi Bing, Fang Taiqing, Ma Jifei and Ye Liang (motion sequence 003), is held in abeyance for the filing by movant, of proof of service of the Order to Show Cause, Affirmation, and Memorandum of Law, on Huang Gui Ming, Shi Bing, Fang Taiqing, Ma Jifei and Ye Liang; and it is further

ORDERED that Morrison & Cohen LLP's failure to supply proof of service within 20 days of the date of this order, will result in the denial of this motion.

Robert R. Reed, J.