Empire State Hospitality Workers' Compensation Trust v 201 W. 79th St. Realty Corp.

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Empire State Hospitality Workers' Compensation Trust v 201 W. 79th St. Realty Corp. 2018 NY Slip Op 33736(U) August 10, 2018 Supreme Court, Albany County Docket Number: Index No. 906384-17 Judge: Richard M. Platkin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ALBANY COUNTY CLERK 08/13/2018 02:47 PM NYSCEF DOC. NO. 152 . c INDEX NO. 906384-17 RECEIVED NYSCEF: 08/13/2018 . -.~ STATE OF NEW YORK SUPREME. COURT COMMERCIAL DIVISION COUNTY OF ALBANY EMPIRE STATE HOSPITALITY WORKERS' COMPENSATION TRUST, Plaintiff, DECISION & ORDER -against201WEST79TH STREET REALTY CORP. D/B/A HOTEL LUCERNE, et al., .Defendants. Index No.: 906384-17 (Judge Richard M. Platkin, Presiding) APPEARANCES: E. STEWART JONES HACKER MURPHY, LLP Attorneys for Plaintiff (Thomas J. Higgs, of counsel) 28 Second Street Troy, New York 12180 POPE, SCHRADER & POPE, LLP Attorneys for Defendant Sar bro Realty C01poration a/kla Sarbro VII dlbla Parcel 5A Associate_s (Alan J. Pope, of counsel) 2 Court Street, 4th Floor P.O. Box 510 Binghamton, New York 13902 1 of 4 [*FILED: 2] ALBANY COUNTY CLERK 08/13/2018 02:47 PM NYSCEF DOC. NO. 152 INDEX NO. 906384-17 RECEIVED NYSCEF: 08/13/2018 Hon. Richard M. Platkin, A.J.S.C. This is a collection action brought by plaintiff Empire State Hospitality Workers' Compensation Trust ("Trust") against a number of its former members. The action was commenced on September 29, 2017 by the filing of a summons and verified complaint. As is relevant here, defendant Sarbro Realty Corporation a/k/a Sarbro VII d/b/a Parcel 5A Associates ("Sarbro") joined issue through the filing of an answer on December 4, 2017. ·By court notice dated June 1, 2018, the parties were directed to appear for a preliminary conference on June 13, 2018. On June 12, 2018, Sarbro's counsel advised this Court that his client had "terminated [the] firm on the basis that it has no monies to pay [the] firm" (Higgs Aff., Ex. I). Counsel's letter also stated that Sarbro had advised that it "will not be retaining any other attorney to represent it and that [it] underst[ood] this could result in a default judgment" (id.). . . Consequently, the Court noted Sarbro's default In appearance at the conference and authorized the Trust to seek entry of a default judgment pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.27 (a). The Trust filed its motion on June 15, 2018 and made the motion returnable on July 19, 2018~ Two days ·prior to the Trust's motion, however, Sarbro' s counsel had moved pursuant to CPLR 321 for permission to withdraw, citing Sarbro's nonpayment of legal bills and its termination of counsel (see Pope Aff., if 5). The withdrawal application was made returnable on July 3, 2018. After due consideration and in the absence of any objection, it is appropriate to relieve counsel from further_representatio~ of Sarbro in this action. Further, the Court will afford Sarbro, a corporate entity, at least 30 days to retain new counsel before acting on the Trust's 2 2 of 4 [*FILED: 3] ALBANY COUNTY CLERK 08/13/2018 02:47 PM NYSCEF DOC. NO. 152 INDEX NO. 906384-17 RECEIVED NYSCEF: 08/13/2018 I • motion for entry of a default judgment (see CPLR 321 [a], [c]). Sarbro shall be on notice that the Court intends to enter a default judgment against it if successor counsel does not file a notice of appearance on its behalf prior to the expiration of such period (see Mail Boxes Etc. USA v Higgins, 281 AD2d 176, 176 [1st Dept 2001], appeal dismissed 96 NY2d 895 [2001]; see also World on Columbus v L.C.K. Rest. Group, 260 AD2d 323, 324 [1st Dept 1999]; cf Pisci_otta v L(festyle Designs, Inc., 62 AD3d 850, 853 [2d Dept 2009]). Based on the foregoing, it is ORDERED that the motion of Pope, Schrader & Pope, LLP to withdraw as counsel for defendant Sarbro is granted; and it is further ORDERED that Pope, Schrader & Pope, LLP is deemed to have withdrawn as counsel of record for Sarbro in this matter; and it is further ORDERED that all proceedings in the abov.e-captioned action, including plaintiff's motion for a default judgment, shall be stayed as against Sarbro pursuant to CPLR 321 for thirty (30) days from the date of service of this Decision & Order upon Sarbro with notice of entry, to afford Sarbro the opportunity to retain new counsel; and it is further ORDERED that Pope, Schrader & Pope, LLP shall promptly serve this Decision & · Order with notice of entry on Sarbro and all other parties to this action entitled to service, and it shall file an affidavit evidencing such service; and it is further ORDERED that upon such service, Pope, Schrader & Pope, LLP shall no longer be deemed to represent Sarbro in this action; and finally it is ORDERED that, if Sarbro fails to appear in this action through counsel prior to the expiration of the stay, it shall be deemed to be in default. 3 3 of 4 [*FILED: 4] ALBANY COUNTY CLERK 08/13/2018 02:47 PM NYSCEF DOC. NO. 152 INDEX NO. 906384-17 RECEIVED NYSCEF: 08/13/2018 This constitutes the Decision & Order of the Court, the original of which is being ' ' transmitted to the Albany County Clerk for electronic filing and entry. Upon such entry, counsel for Sarbro shall promptly serve notice of entry on all other parties to this action (see Uniform Rules for Trial Cts [22 NYCRR] § 202.5-b [h] [1], [2]). I Dated: Albany, New York August 10, 2018 RICHARD M. PLATKIN ~~~ Papers considered: ~~ ·2 - 13 - l f ,/(.(> '' NYSCEF Doc Nos: 103-116. 4 4 of 4

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