Yossef Eldewak, Plaintiff v. UTF MIGUEL CORREA (2026)

The following papers efiled on NYSCEF were used on this motion: 7-11, 13-19.

Upon the foregoing papers, having heard oral argument, and due deliberation having been had, the within motion is determined as follows.

Background

Plaintiff Yossef Eldewak sued Defendants UTF Trucking, Inc. and Miguel Correa in this action, alleging serious injuries from a motor vehicle accident occurring on January 6, 2025 (see NY St Cts Elec Filing [NYSCEF] Doc No. 10, complaint).

Plaintiff's counsel, The Noll Law Firm, P.C. ("counsel"), now moves to be relieved as counsel of record for Plaintiff. The motion also seeks to have counsel's rights to reimbursement of disbursements and to a legal fee acknowledged. Further, counsel requests that this action be stayed for 60 days to enable Plaintiff to obtain new counsel. (See NYSCEF Doc NO. 13, order to show cause.)

Counsel's affirmation offers the following as the basis for relief: "Professional considerations require termination of your affirmant's representation of YOSSEF ELDEWAK as there has been newly obtained video footage, and a fundamental disagreement has arisen concerning the viability of the claims asserted in the complaint" (NYSCEF Doc No. 8, Noll aff ¶ 6). The affirmation does not identify the content of the video footage, its sources, or its relevance. On July 2, 2026, per diem counsel appeared for oral argument before the court and was unable to explain this statement or elaborate upon the video footage relied upon as the basis for the requested relief. Per diem counsel's arguments were as follows:

MS. TANG: This is our motion to be relieved. This is our motion to be relieved. It is our understanding that we newly retained video footage. There's a fundamental disagreement about the viability of the claims after we viewed the footage. We are seeking to be relieved.

THE COURT: What you are doing is you are referencing the contents of paragraph six of the affirmation of Richard E. Noll?

MS. TANG: Yes.

THE COURT: Can you please provide more details as to this. Do you have knowledge of further details?

MS. TANG: I do not have further knowledge of further details.

THE COURT: Is there a particular reason you do not have knowledge of further details?

MS. TANG: My concern would be going — would be to go further into detail.

THE COURT: Do you have a concern about going into them or you just don't know what they are?

MS. TANG: I do not know.

THE COURT: Is that because you are per diem and appearing as of Counsel as a per diem?

MS. TANG: Yes, my understanding is that the Plaintiffs usually do not put additional details in in depth as it might prejudice the Plaintiff's claim. (Tr at 2, line 13, through 3, line 12.)

Moving Counsel's Contentions

Counsel's affirmation by Richard E. Noll, Esq., contends that CPLR 321 (b) (2) governs this application. That provision states: "An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon a motion on such notice to the client of the withdrawing attorney, to the attorneys of all parties in the action, . . . and to any other parties as the Court may direct." Plaintiff's affirmation also relies on 22 NYCRR 1200 rule 1.16 (c) (7), arguing that a lawyer may withdraw from representation where the client "renders the representation unreasonably difficult for the lawyer to carry out employment effectively" (NYSCEF Doc No. 8, Noll aff ¶ 7 [internal quotation marks omitted]).

Counsel's affirmation also contends that attorney fees are incidents of litigation and are not recoverable absent a statutory or contractual basis for recovery. Here, counsel asserts a lien for their legal efforts pursuant to Judiciary Law § 475 on the basis that "In this case, I have represented the clients diligently since 2013 through the completion of discovery; summary judgment practice; multiple court conferences; and through a ten week trial to a favorable verdict, all under the terms of our written retainer agreement" (NYSCEF Doc No. 8, Noll aff ¶ 8).

Plaintiff neither filed any responsive papers to his counsel's motion nor did he appear at oral argument. Defendants took no position.

Discussion

Ethical prescriptions contained in Rules Governing Judicial Conduct (22 NYCRR) § 100.3 (D) (2) and (B) (6) and Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.1 (a), taken together, impose a basic duty upon a judge to take remedial action when it is evident that a lawyer's representation is so significantly diminished due to lack of knowledge of the facts of the case that it would be fundamentally unfair to the client and impair the latter's ability to be heard, and no prejudice inures to the opposing party (see Matter of Adjournment of a Motion for Summary Judgment, 83 Misc 3d 229 [Sup Ct, Kings County 2024] [motion adjourned]).

"It is well settled that in the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained (see, Olmstead v Federated Dept. Stores, 208 AD2d 979; Department of Social Servs. v Trustum C. D., 97 AD2d 831)" (Matter of Saren v Palma, 263 AD2d 544, 545 [2d Dept 1999]). Therefore, a court should tread carefully when considering a motion to be relieved which is not sufficiently supported.

It is quite evident that per diem counsel appearing in support of the motion to be relieved as counsel of record for Plaintiff was not sufficiently familiar with the circumstances underlying the motion.¹ To grant this motion without some further information would place the Court in the position of guessing as to the actual reasons triggering it.

Compounding this situation is the statement by counsel in the aforementioned affirmation, that "In this case, I have represented the clients diligently since 2013 through the completion of discovery; summary judgment practice; multiple court conferences; and through a ten week trial to a favorable verdict, all under the terms of our written retainer agreement" (NYSCEF Doc No. 8, Noll aff ¶ 8). This is plainly incorrect. The accident occurred in 2025, so the statement that the clients (plural) were represented since 2013 cannot be true, unless counsel represented Plaintiff in a prior matter going back to 2013. No summary judgment practice has taken place in this action. In fact, the within motion to be relieved is designated as Motion Sequence No. 1; there have been no prior motions. A ten-week trial in this action has not occurred. If it had, there would be no reason now to seek to be relieved. This action was filed on November 4, 2025, and court databases show that there has been no trial. Considering that the within motion was filed on February 25, 2026, it is also highly doubtful that discovery has been exchanged. It ill behooves counsel to include incorrect statements in an application to be relieved. Evidently this reflects lack of care in preparing supporting arguments.

"The court is entitled to rely upon the accuracy of any statement of a relevant fact unequivocally made by an attorney in the course of judicial proceedings" (Matter of Schildhaus, 23 AD2d 152, 156 [1st Dept 1965]). In fact, an attorney who makes specious arguments or misleads the court is subject to discipline (see Matter of Benjamin, 205 AD2d 978 [3d Dept 1994]; Matter of Friedman, 196 AD2d 280 [1st Dept 1994]; Matter of Neuwirth, 39 AD2d 365 [2d Dept 1972]; Matter of Schildhaus, 23 AD2d 152).

In Kalamata Capital Group, LLC v AJP Remodeling, LLC (81 Misc 3d 1209[A], 2023 NY Slip Op 51301[U], * 2-4 [Sup Ct, Kings County 2023]), this Court wrote:

In 1912, the Court of Appeals established that an attorney may terminate his relationship with a client in litigation "at any time for a good and sufficient cause and upon reasonable notice" (Matter of Dunn [Brackett], 205 NY 398, 403 [1912]).

. . . However, an attorney's right to withdraw as counsel is not absolute, and a sound reason must be provided why counsel should be allowed to withdraw (see Matter of Jamieko A., 193 AD2d 409 [1st Dept 1993]).

. . .

The courts have an "inherent and statutory power to regulate the practice of law" (Matter of First Natl. Bank of E. Islip v Brower, 42 NY2d 471, 474 [1977]), and that power includes the authority to deny a motion to withdraw "because of the attorney's failure to show good and sufficient cause warranting withdrawal under the Code of Professional Responsibility"[² ] (J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929, 930 [4th Dept 1988]; accord Willis v Holder, 43 AD3d 1441 [4th Dept 2007]).

After an attorney has withdrawn it would be foolhardy to believe that the Defendant will easily be able to obtain a new attorney as "whatever the basis of permitted withdrawal, and certainly where it is based on insufficient merit of the claim or defense, prospective new counsel will, understandably, be reluctant to accept the representation" (Diaz v New York Comprehensive Cardiology, PLLC, 43 Misc 3d 759, 764 [Sup Ct, Kings County 2014]).

"The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (McDonald v Shore, 100 AD3d 602, 603 [2d Dept 2012] [internal quotation marks and citations omitted]).

. . .

Furthermore, when an attorney seeks to be relieved of counsel, moving papers must contain specific allegations in order to be relieved as counsel; conclusory statements are not sufficient (see Kramer v Salvati, 88 AD2d 583 [2d Dept 1982]). In Kramer, the Appellate Division found that the moving papers of plaintiffs' attorneys seeking to be relived of their responsibilities based their application on "various differences," but there was "no specification whatsoever of this conclusory assertion" (id. at 583). Supreme Court's denial of the attorneys' motion was sustained.

It must be emphasized that when an attorney undertakes to represent a defendant in a civil action, there exists a presumption that the representation will continue in good faith throughout the course of the litigation (see Moustakos v Bouloukos, 112 AD2d 981 [2d Dept 1985]; Blondell v Malone, 91 AD2d 1201 [4th Dept 1983]). An attorney cannot unilaterally terminate a relationship with clients simply by failing to perform services expressly or impliedly authorized by them (see Leffler v Mills, 285 AD2d 774 [3d Dept 2011]). One should not enter into a client representation with the aforethought that the attorney can earn a quick fee and then let the client loose. "As the saying goes, 'in for a penny, in for a pound' (Edward Ravenscroft, The Canterbury Guests; Or, A Bargain Broken, act v, scene 1 [1695])" (People v Graves, 163 AD3d 16, 22 [4th Dept 2018]).

In Kalamata Capital Group, LLC, Defendants' counsel was denied leave to be relieved, as a conclusory one-sentence statement that the client no longer wished to be represented by them was insufficiently detailed.

Applying these principles here, counsel's affirmation, specifically paragraph 6, falls short of the good cause standard required to relieve counsel. Akin to the one-sentence statement rejected in Kalamata Capital Group, LLC, counsel's affirmation offers only a conclusory reference to "newly obtained video footage" and a "fundamental disagreement" over the viability of the claims, without identifying what the footage shows, when or how it was obtained, or why the footage creates entitlement to relief.³ These bare assertions do not facilitate informed consideration by the Court as to whether withdrawal is warranted. And further, the obviously incorrect assertions by counsel in paragraph 8 of the supporting affirmation make clear that a sincere application for relief was not prepared.

The inadequacy of the affirmation and inclusion of incorrect statements was not cured by per diem counsel's appearance at oral argument. As in Elam v Eglesias (2025 NY Slip Op 50370[U]) and Matter of Adjournment of a Motion for Summary Judgment (83 Misc 3d 229), when per diem counsel is unprepared, this hinders meaningful adjudication of a matter presented to the court.⁴

Conclusion

Due to the insufficient and incorrect showing of moving counsel, their motion to be relieved from representing Plaintiff must be DENIED.

Further, moving counsel is directed to appear for a hearing on August 13, 2026, at 9:30 a.m., in Courtroom 15.58, at the Courthouse, 320 Jay Street, Brooklyn, New York, concerning whether sanctions should be imposed for submitting to the court an affirmation stating, "In this case, I have represented the clients diligently since 2013 through the completion of discovery; summary judgment practice; multiple court conferences; and through a ten week trial to a favorable verdict, all under the terms of our written retainer agreement" (NYSCEF Doc No. 8, Noll aff ¶ 8). Sanctions may be imposed upon an attorney who engages in frivolous conduct, which is defined in part as "assert[ing] material factual statements that are false" (22 NYCRR 130-1.1 [c] [3]). No later than August 7, 2026, moving counsel shall submit on NYSCEF and through email to the court's law clerks, a written explanation for the basis for making the aforementioned statement in the submitted affirmation. Defendants may, but are not required to, submit a response within two business days afterwards.

The foregoing constitutes the DECISION AND ORDER of the Court.

E N T E R

FOOTNOTES

1.   The Court has observed that in the past few years, many law firms are retaining per diem counsel unfamiliar with the facts to appear at oral argument on motions (e.g. Elam v Eglesias, 85 Misc 3d 1237[A], 2025 NY Slip Op 50370[U] [Sup Ct, Kings County 2025] [motion misquoted CPLR provision]). In point of fact, some per diem counsel do not even speak to the retaining law firm because they are actually retained through an intermediary entity, as was the case here:THE COURT: Who retained you?MS. TANG: I'm appearing on behalf of the Noll Law Firm PC.THE COURT: Did they ask you to appear? Did they ask you to appear?MS. TANG: So they went through a per diem service and the per diem contracted me to appear on their behalf. (Tr at 3, line 23, through 4, line 4.)

2.   The Code of Professional Responsibility was replaced by the Rules of Professional Conduct in 2009.

3.   If there was an issue of client confidentiality, ex parte disclosure to the court could have been made with consent of opposing counsel.

4.   This Court is not the only one to encounter problems resulting from per diem attorney appearances on behalf of clients (see, e.g. Soto v Chelsea W26, LLC, 166 AD3d 1048 [2d Dept 2018] [pier diem attorney may not have appeared on motion return date]; Min Yoon v Costello, 29 AD3d 407 [1st Dept 2006] [per diem attorney's failure to appear in mistaken belief that motion would be called later did not constitute reasonable excuse for default]; Nunez v Resource Warehousing & Consolidation, 6 AD3d 325 [1st Dept 2004] [per diem attorney failed to notify attorney of record that matter marked off trial calendar]; Jackson v 965 Greene Holding Corp., 84 Misc 3d 1232[A], 2024 NY Slip Op 51600[U] [Sup Ct, Kings County 2024] [per diem attorney had not even spoken to attorney of record]; Jones v Wong, 2020 NY Slip Op 30395[U] [Sup Ct, NY County 2020] [per diem attorney ill-equipped to sufficiently explain complexities of physician's affirmation required to oppose defendant's motion]; 3343 Decatur Ave. LLC v Rios, 58 Misc 3d 1225[A], 2018 NY Slip Op 50264[A] [Civ Ct, Bronx County 2018] [per diem attorney who appeared on motions never read pleading]; 4298 Park LLC v Bracero, 46 Misc 3d 1209[A], 2015 NY Slip Op 50023[U] [Civ Ct, Bronx County 2015] [per diem attorney lacking sufficient knowledge of case entered into stipulation]; Kane v City of New York, 36 Misc 3d 1231[A], 2012 NY Slip Op 51567[U] [Sup Ct, Richmond County 2012 [stipulation entered into sought to be vacated by attorney of record because per diem covering cases in more than one Part authorized another attorney to attend discovery conference]; Bobet v Rockefeller Ctr. N., 2009 NY Slip Op 33444[U] [Sup Ct, NY County 2009] [attorney of record misinformed by per diem attorney that matter merely adjourned]; Focus Camera & Video, Inc. v Choice One Digital, Inc., 12 Misc 3d 1165[A], 2006 NY Slip Op 51065[U] [Sup Ct, Kings County 2006] [per diem attorney failed to pick up file and/or appear] (Elam v Eglesias, *2-3, 2025 NY Slip Op 50370[U]).

Aaron D. Maslow, J.