MDB Dev. Corp. v Naylor Concrete & Steel Erectors, LLC

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MDB Dev. Corp. v Naylor Concrete & Steel Erectors, LLC 2019 NY Slip Op 32520(U) August 22, 2019 Supreme Court, New York County Docket Number: 650622/2018 Judge: Joel M. Cohen 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] NEW YORK COUNTY CLERK 08/27/2019 03:17 PM NYSCEF DOC. NO. 143 INDEX NO. 650622/2018 RECEIVED NYSCEF: 08/27/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOEL M. COHEN PART IAS MOTION 3EFM Justice ---------------------------------------------------------------------------------X MDB DEVELOPMENT CORP., Plaintiff, INDEX NO. 650622/2018 MOTION DATE N/A MOTION SEQ. NO. 005 -vDECISION + ORDER ON MOTION NAYLOR CONCRETE & STEEL ERECTORS, LLC, Defendant. ---------------------------------------------------------------------------------X NAYLOR CONCRETE & STEEL ERECTORS, LLC, Third-Party Index No. 595254/2018 Plaintiff, -againstDOKA USA, LTD., UNITED TRANSIT MIX, INC., HD SUPPLY CONSTRUCTION SUPPLY LTD., MEN OF STEEL REBAR FABRICATORS LLC, SUNBELT RENTALS, INC., FIDELITY AND DEPOSIT COMPANY OF MARYLAND ZURICH AMERICAN INSURANCE COMPANY, WC 28 REAL TY, LLC, ABC CORPORATIONS 1-10, RICKY NAYLOR, JOHN DOES 1-10 Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 005) 131, 134, 135 were read on this motion to WITHDRAW AS COUNSEL Upon the foregoing documents Counsel for Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third Counterclaim and Cross-Claim Defendant Ricky Naylor (collectively "Naylor Defendants"), Robert 0. Corini, Esq., seeks to withdraw as counsel pursuant to CPLR §32l(b)(2) and NYSCRR §1200.15 (c)(l)(iv) and (c)(l)(vi). This motion is unopposed. 650622/2018 MOB DEVELOPMENT CORP. vs. NAYLOR CONCRETE & STEEL Motion No. 005 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 08/27/2019 03:17 PM NYSCEF DOC. NO. 143 INDEX NO. 650622/2018 RECEIVED NYSCEF: 08/27/2019 This action was commenced by MDB Development Corp. against Defendant Naylor Concrete & Steel Erectors, LLC on February 7, 2018 alleging breach of contract, diversion of lien law trust funds, and willful exaggeration of lien. Defendant Naylor Concrete commenced a third-party action against various defendants. Now before the Court is Robert 0. Carini, Esq.'s motion, brought by Order to Show Cause, to be relieved as counsel on behalf of the Naylor Defendants. Mr. Carini asserts that there has been a breakdown in his relationship with the Naylor Defendants due to their failure to remit payment for legal services and respond to communication efforts made by Mr. Carini, rendering continued and effective representation of the Naylor Defendants in this action impossible. Carini A.ff., ~9-10 (NYSCEF 131 ). The Order to Show Cause was signed on August 5, 2019 and directed opposition, if any, to this requested relief be filed by August 21, 2019 and further provided that a copy of the Order to Show Cause and the supporting papers upon which it is based shall be served upon all parties by certified mail. Counsel filed affidavits of service attesting that copies were served upon the parties. (NYSCEF 142). No opposition having been filed, this motion is unopposed. For the following reasons, the Court grants counsel's motion to withdraw as attorney of record for the Naylor Defendants. Relieving counsel from its representation of a party is appropriate where, inter alia, there is adequate evidence showing a breakdown in the attorney-client relationship. Robinson v. Friedman Mgt. Corp., 49 A.D. 3d 436, 437 (1st Dep't 2008); see also Bok v. Werner, 9 A.D.3d 318 (1 51 Dep't2004) (reversing denial of motion to withdraw as counsel in view of counsel's claimed breakdown in relationship with client); see also Rule 1.16(c)( 5) of the Rules of Professional Conduct (a lawyer may withdraw from representing a client when: the client 650622/2018 MOB DEVELOPMENT CORP. vs. NAYLOR CONCRETE & STEEL Motion No. 005 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 08/27/2019 03:17 PM NYSCEF DOC. NO. 143 INDEX NO. 650622/2018 RECEIVED NYSCEF: 08/27/2019 deliberately disregards an agreement or obligation to the lawyer as to expenses or fees). Movant has done so. Given that discovery is ongoing, Naylor Defendants should not be prejudiced by a change in counsel. The Court concludes that Robert 0. Corini, Esq. has made a sufficient showing of entitlement to withdraw as counsel for the Naylor Defendants and his motion is Granted. Mr. Corini is directed to comply with his obligation under Rule 1.16(e) of the Rules of Professional Conduct as stated below. It is therefore: ORDERED that the motion of Robert 0. Corini, Esq. to be relieved as attorney for Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor in this action is granted without opposition, subject to the following conditions; it is further ORDERED that Robert 0. Corini, Esq is to comply with his obligation under Rule 1.16(e) of the Rules of Professional Conduct, as applicable to the facts presented, to "take steps, to the extent reasonably practicable, to avoid foreseeable prejudice to the rights of the client, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, promptly refunding any part of a fee paid in advance that has not been earned and complying with applicable laws and rules."; it is further ORDERED that, within 10 days from entry, Robert 0. Corini, Esq shall serve a copy of this order with notice of entry upon both Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor by email and by hard copy at their last known address by certified mail, return receipt requested, and upon 65062212018 MOB DEVELOPMENT CORP. vs. NAYLOR CONCRETE & STEEL Motion No. 005 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 08/27/2019 03:17 PM NYSCEF DOC. NO. 143 INDEX NO. 650622/2018 RECEIVED NYSCEF: 08/27/2019 the attorneys for all other parties appearing herein by posting to the New York State Courts Electronic Filing System; it is further ORDERED that, together with the copy of this order with notice of entry served upon Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor, moving counsel shall forward a notice directing Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor to appoint a substitute attorney within 30 days from the date of the mailing of the notice and the client shall comply therewith; it is further ORDERED that any new attorney retained by Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor shall file a notice of appearance with the Clerk of the General Clerk's Office (60 Centre Street, Room 119) and the Clerk of the Part within 40 days from the date the notice to retain new counsel is mailed; it is further ORDERED that no further proceedings may be taken against Defendant/Third-Party Plaintiff Naylor Concrete & Steel Erectors, LLC and Third-Party Counterclaim and Cross-Claim Defendant Ricky Naylor without leave of this court for a period of 40 days after service on all parties of the aforesaid notice to appoint a substitute attorney; it is further ORDERED that the departing attorney shall, within 10 days from entry, serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (Room 119); it is further ORDERED that such service upon the Clerk of the General Clerk's Office, the filing of a notice of appearance as provided herein, and the filing of papers as aforesaid shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk 650622/2018 MOB DEVELOPMENT CORP. vs. NAYLOR CONCRETE & STEEL Motion No. 005 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 08/27/2019 03:17 PM NYSCEF DOC. NO. 143 INDEX NO. 650622/2018 RECEIVED NYSCEF: 08/27/2019 Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ORDERED that all parties are to appear for a Status Conference in this matter on October 15, 2019 at 11:00 a.m. 8/22/2019 DATE CHECK ONE: CASE DISPOSED APPLICATION: SETILEORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART 650622/2018 MOB DEVELOPMENT CORP. vs. NAYLOR CONCRETE & STEEL Motion No. 005 5 of 5 D OTHER D REFERENCE Page 5 of 5

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