104-106 Sullivan St. LLC v Borga

[*1] 104-106 Sullivan St. LLC v Borga 2010 NY Slip Op 51979(U) [29 Misc 3d 135(A)] Decided on November 18, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 18, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570207/10.

104-106 Sullivan Street LLC, Petitioner-Respondent, Estate of

against

Marie Borga, -and- Paulo D. Antunes, Respondent-Appellant, -and- "John Doe" and/or "Jane Doe," Respondents.

Respondent Paulo Antunes, as limited by his brief, appeals from those portions of a final judgment of the Civil Court of the City of New York, New York County (Eardell J. Rashford, J.), dated August 21, 2009, which awarded possession and rent arrears in the principal sum of $7,272.40 to petitioner. The appeal brings up for review an order, same date, court and Judge, which, among other things, granted the cross motion of a nonparty-attorney to withdraw as counsel for respondent Antunes.

Per Curiam.

Final judgment (Eardell J. Rashford, J.), insofar as appealed from, reversed, without costs, and the matter remanded to Civil Court for further proceedings consistent herewith.

An attorney of record may, on reasonable notice to the client, withdraw as counsel upon a showing of good and sufficient cause (see CPLR 321[b][2]; Matter of Tierra C., 227 AD2d 994 [1996]). A purported withdrawal of counsel without proof that reasonable notice was given to the client is ineffective (see Matter of Williams v Lewis, 258 AD2d 974 [1999]). Here, respondent Antunes' attorney, in contravention of both a so-ordered stipulation and CPLR 321, moved to be relieved as respondent's counsel by cross motion (instead of an order to show cause) in response to petitioner's motion for summary judgment against respondent. The record contains no proof that respondent Antunes the client of the withdrawing attorney was provided with notice of the cross motion of his counsel to be relieved; apparently, notice of that cross motion was only afforded to petitioner. In light of the absence of notice of the attorney's [*2]application to respondent Antunes, the attorney's purported withdrawal was ineffective, respondent was not in default in opposing petitioner's summary judgment motion and judgment should not have been awarded to petitioner on that basis.

We therefore reverse the final judgment entered against respondent Antunes and remand the matter to Civil Court for further proceedings, including proper withdrawal of respondent's initial counsel and substitution of incoming counsel. We note that our disposition of this appeal is without prejudice to renewal by petitioner of its underlying motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 18, 2010