MOHAWK GROUP INC v. FCO SUPPLIERS JAMES LEE WALLACE SHIMABUKURO FORSTMANN CO INC FORSTMANN CO LLC KEVEN KIM (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 005) 59, 60, 61, 62 were read on this motion to SUBST/RELIEVE/WITHDRAW COUNSEL.

In a prior application filed on June 9, 2025, attorney Mark T. Doerr, Esq. filed an order to show cause seeking discharge for himself and attorney Michael S. Marron, Esq. as counsel for defendants Federico & Company d/b/a M&W Suppliers and Wallace Shimabukuro (Shimabukuro defendants)(motion seq. no. 004). That application was denied on September 30, 2025 for counsels' failure to properly serve defendants in accordance with CPLR 321 (2) (Decision + Order, NYSCEF doc. no. 57).

Now, in motion sequence number 005, counsel again moves for an order allowing counsel to withdraw. The application and affirmation in support make identical averments of fact: namely, that "significant and irreconcilable differences have arisen" between counsel and defendants Shimabukuro and M&W Suppliers, and that counsel has not been able to speak or communicate with Shimabukuro since 2023 (NYSCEF doc. no. 54, para.7; doc. no. 60, para. 8).

The court signed the proposed order to show cause on February 17, 2026, and directed that defendants be personally served with notice of counsel's intent to withdraw no later than February 24, 2026, and proof of service be filed no later than February 27, 2026. Opposition to the application was to be served and filed no later than March 9, 2026. (NYSCEF doc. no. 61).

The same day the court signed counsel's proposed order to show cause to withdraw (February 17, 2026), counsel for plaintiff provided the court with electronic mail correspondence acknowledging counsel's intent to withdraw, and affirming that, based on counsel's representations, Aterian has decided to dismiss its claims against the Shimabukuro Defendants.

An affidavit of non-service was filed on April 17, 2026, declaring that Wallace Shimabukuro was unable to be served at the address provided to the process server (NYSCEF doc. no. 62). No opposition to the instant motion was filed. No evidence of further efforts to serve defendant Shimabukuro has been provided to the court, and no evidence identifying efforts to serve defendant Federico & Company d/b/a M&W Suppliers has been provided to the court.

CPLR 321 (2) provides that 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. The plain language of the provision requires that the withdrawal of the attorney be on notice to the client (id.).

Here, the court signed counsel's order to show cause on February 17, 2026, directing counsel to serve defendants with the order to show cause and accompanying papers on or before February 24, 2026. Counsel did not file an affidavit attesting that service was complete — instead, counsel served an affidavit that service was not effectuated (NYSCEF doc. nos. 61, 62).

Counsel's affidavit of service is inadequate — as it does not comply with this court's directives and does not comply with the CPLR 321 requirement that his withdrawal be made upon notice to counsel's client. Counsel has not made an application for alternate service, nor made additional attempts to serve Shimabukuro by alternate or additional means. Neither has counsel provided proof of service upon the corporate defendant, Federico & Company d/b/a M&W Suppliers. This court previously denied counsels' application for identical reasons. The refiling of counsels' motion, with an affidavit of non-service, does not cure its notice deficiencies.

Accordingly, it is hereby

ORDERED, that the motion of Mark T. Doerr, Esq. and Michael S. Marron, Esq., to withdraw as counsel for defendants Federico & Company d/b/a M&W Suppliers and Wallace Shimabukuro (motion seq. no. 005), is denied, without prejudice; and it is further

ORDERED that counsel for plaintiff, and counsel for the Shimabukuro defendants, are directed to appear for a status conference on May 28, 2026 at 10:00 a.m. to discuss resolution of the matter.

DATE May 19, 2026

ROBERT R. REED, J.S.C.

Robert R. Reed, J.