Arent Fox LLP v JDN AA, LLC

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Arent Fox LLP v JDN AA, LLC 2019 NY Slip Op 32968(U) October 10, 2019 Supreme Court, New York County Docket Number: 151654/2018 Judge: David Benjamin 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 10/11/2019 11:39 AM NYSCEF DOC. NO. 247 INDEX NO. 151654/2018 RECEIVED NYSCEF: 10/11/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. JOEL M. COHEN IAS MOTION 3EFM Justice ---------------------------------------------------------------------------------X ARENT FOX LLP, INDEX NO. MOTION DATE Plaintiff, MOTION SEQ. NO. 151654/2018 09/24/2019 008 -vJON AA, LLC D/B/A AUDI/NEWTON, SUBARU 46 LLC, and DCN AUTOMOTIVE LLC DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 008) 234, 235, 236, 237, 238,239,240,241, 242 were read on this motion for RELIEF OF ATTORNEY Upon the foregoing documents: This action was commenced by Arent Fox LLP against Defendants for nonpayment of legal fees. The firm asserts claims for breach of contract, account stated, quantum meruit, unjust enrichment, and promissory estoppel. Discovery has been concluded in this action and Note of Issue has been filed. A pre-trial Conference has not yet been scheduled. Now before the Court is the motion by Defendants' counsel, Brach Eichler LLC ("Brach Eichler"), to be relieved as counsel pursuant to CPLR §321 (b)(2). Plaintiff opposes this motion. For the following reasons, Defendants motion is Granted. Brach Eichler cites to a breakdown in the attorney client relationship as its reason for being unable to continue to work with Defendants. Suriano Ajf., if4 (NYSCEF 236) and Suriano Reply Ajf., if3. (NYSCEF 241 ). 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 151654/2018 ARENT FOX LLP vs. SUBARU 46 LLC, Motion No. 008 Page 1 of4 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 10/11/2019 11:39 AM NYSCEF DOC. NO. 247 INDEX NO. 151654/2018 RECEIVED NYSCEF: 10/11/2019 Friedman Mgt. Corp., 49 A.D. 3d 436, 437 (1st Dep't 2008)," see also Bok v Werner, 9 A.D.3d 318 (l5t Dep't 2004) (reversing denial of motion to withdraw as counsel in view of counsel's claimed breakdown in relationship with client). Movant has done so. Given that the case has not been scheduled for trial and there are no pending dispositive motions and discovery has concluded, Defendants should not be prejudiced by a change in counsel. Plaintiff's opposition to this motion largely concerns the potential litigation delay that may result from Brach Eichler's request. While a stay has been requested by Brach Eisler, the Court does not find awarding such a brief stay will delay the trial of this matter or resolution of this matter. There are currently no pending appearances nor is there a trial date on the calendar. The Court concludes that Brach Eichler has made a sufficient showing of entitlement to withdraw as counsel for Defendants and its motion is Granted. Brach Eichler is directed to advise Defendants that, as corporate Defendants, they may not appear pro se and must retain new counsel. See CPLR §321(a). Brach Eichler is also directed to comply with its obligation under Rule 1.16(d) of the Rules of Professional Conduct as stated below. It is therefore: ORDERED that the motion of Brach Eichler LLC to be relieved as attorney for Defendants in this action is granted, subject to the following conditions: ORDERED that Brach Eichler LLC is to comply with its obligation under Rule 1.16(d) 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 clients, including giving reasonable notice to the clients, allowing time for employment of other counsel, delivering to the clients all papers and property to which the clients is entitled, promptly Page 2 of 4 151654/2018 ARENT FOX LLP vs. SUBARU 46 LLC, Motion No. 008 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 10/11/2019 11:39 AM NYSCEF DOC. NO. 247 INDEX NO. 151654/2018 RECEIVED NYSCEF: 10/11/2019 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, Brach Eicher LLC shall serve a copy of this order with notice of entry upon Defendants by email and by hard copy at their last known address by certified mail, return receipt requested, and upon 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 all parties, moving counsel shall forward a notice directing Defendants to appoint a substitute attorney within 30 days from the date of the mailing of the notice and Defendants shall comply therewith; it is further ORDERED that any new attorney retained by Defendants 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 30 days from the date the notice to retain new counsel is served; it is further ORDERED that no further proceedings may be taken against Defendants without leave of this court for a period of 30 days after service on Defendants 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); and 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 151654/2018 ARENT FOX LLP vs. SUBARU 46 LLC, Motion No. 008 Page 3 of 4 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 10/11/2019 11:39 AM NYSCEF DOC. NO. 247 INDEX NO. 151654/2018 RECEIVED NYSCEF: 10/11/2019 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 on November 26, 2019 at 11 :30 a.m. in Room 222 for a Pre-Trial Conference. 10/10/2019 DATE CHECK ONE: JOEL M. COHEN, J.S.C. CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 151654/2018 ARENT FOX LLP vs. SUBARU 46 LLC, Motion No. 008 D D OTHER REFERENCE Page 4 of 4 4 of 4

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