Citibank, N.A. v Torres
Annotate this CaseDecided on February 25, 2022
Civil Court of the City of New York, Bronx County
Citibank, N.A., Plaintiff,
against
Moises Torres, Defendant.
Index No. CV-008313-20/BX
Jeffrey S. Zellan, J.
Recitation as Required by CPLR §2219(a): The following papers Papers Numbered were read on this Motion for Judgment on Default on Stipulation:
Plaintiff's Notice of Motion, Affirmation in Support, and Exhibits 1
Defendant's Affidavit and Affirmation in Opposition
Plaintiff's Reply Affirmation in Support
Upon the foregoing cited papers and having heard plaintiff's counsel in open Court, the Decision/Order of this Court is as follows:
Plaintiff moves for judgment on default pursuant to CPLR 3215(i) for defendant's alleged failure to comply with the terms of a stipulation of settlement. On February 24 2022, movant/plaintiff appeared by counsel, but non-movant/defendant did not. Although the Court indicated in open Court that it was inclined to adjourn plaintiff's motion to allow further briefing and other actions in an attempt to cure certain deficiencies in the motion papers, the Court, upon further consideration, denies plaintiff's motion without prejudice with leave to re-file at such time as the deficiencies set forth in this Order, and in the Court's prior order dated November 19, 2021 (Howard-Algarin, J.), are adequately remedied.
At the outset, the Court notes that this is plaintiff's second motion for judgment upon defendant's alleged default in complying with a stipulation of settlement. Plaintiff's first motion was denied by the Court because plaintiff's notice of motion had been served on defendant directly despite counsel having previously appeared for defendant in this action by way of the stipulation of settlement that was signed by an attorney from the firm of Conn & Bryant LLP [*2]on defendant's behalf.[FN1] Although the Court's records did not and still do not appear to contain a notice of appearance by counsel on defendant's behalf or an application for admission pro hac vice (to the extent necessary as defendant's counsel's firm appears to be based in Oklahoma), counsel's execution of the stipulation of settlement constitutes an appearance and, as the Court previously noted in its November 19th decision, counsel has not been relieved pursuant to CPLR 321.
It appears that plaintiff attempts to remedy the deficiencies noted in the November 19th decision by way of annexing a copy of a January 19, 2021 email from a legal assistant at Conn & Bryant LLP to opposing counsel, indicating that Conn & Bryant LLP no longer represented defendant in this action. The Court finds that an email from a non-attorney, which does not copy their own client, copy any attorney at that firm, or even state that the email was sent on an attorney's behalf, is insufficient to satisfy the Court that defendant knows he is longer represented in this action and/or that he must now appear in this action through new counsel or on their own behalf to address a pending motion. There is also no indication in that January 19, 2021 email, or any other document, that defendant was even advised of the underlying notice of default, particularly given that defendant's counsel may have disassociated with defendant by that time.[FN2] Accordingly, the documents newly submitted to the Court in conjunction with Motion Sequence No. 002 in an attempt to remedy the defect previously noted by the Court in resolution of Motion Sequence No. 001 fail to do so.
Defendant's counsel is reminded that, pursuant to CPLR 321(b), change or withdrawal of counsel may be accomplished in either of two ways: (1) "by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party;" or (2) "by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct." An email from a legal assistant to opposing counsel does not substitute for proper withdrawal. Counsel is not relieved until proper withdrawal is accomplished pursuant to CPLR 321(b), and defendant, if he desires new counsel, or prefers to appear on his own behalf in this action, may not do so pursuant to CPLR 321(a) until that withdrawal is properly accomplished.
As a result, plaintiff's service of this motion upon defendant directly, again, is contrary to CPLR 2103(b). Additionally, perhaps more important than what might seem to be a mere technical violation, the Court is not satisfied based on the papers submitted along with Motion Sequence No. 002 that defendant was made aware that (a) his attorneys of record were seeking to withdraw as counsel and indeed considered themselves withdrawn; (b) that defendant received a copy of the 10-day notice of default and understand that it was his and not his attorneys' responsibility to respond; or (c) defendant understood that he had no counsel to address the [*3]motion for default judgment. As, the defect in plaintiff's first motion (Motion Sequence No. 001) compelling denial remains uncured, for the reasons set forth in the Court's November 19th decision and the reasons set forth in the instant decision on Motion Sequence No. 002, the Court will again deny plaintiff's motion, without prejudice, but with certain clarifying instructions.[FN3]
Accordingly, in order to facilitate progress of this action, it is:
ORDERED that plaintiff serve a copy of this Order, with notice of entry, upon defendant's counsel, and upon defendant directly, within thirty (30) days of this Order; and file notice proof of service with the Court; and it is further
ORDERED that defendant's counsel, within thirty (30) days of service of this Order, file a notice of appearance if they wish to remain defendant's counsel; or file defendant's consent to change or withdrawal of counsel pursuant to CPLR 321(b)(1); or file a motion seeking leave to withdraw as counsel of record pursuant to CPLR 321(b)(2); and it is further
ORDERED that plaintiff's motion is denied without prejudice with leave to re-file a motion seeking the same or similar relief upon proper service in accordance with CPLR 2103 after the issue of defendant's representation is resolved.
This constitutes the Decision and Order of the Court.
Dated: February 25, 2022
Bronx, New York
_________________________
Hon. Jeffrey S. Zellan, J.C.C. Footnotes
Footnote 1:Defendant's counsel's signature is difficult to decipher and, while the names of both parties' firms were typed on the stipulation of settlement, executing counsel for both sides neglected to print their names beside their signatures.
Footnote 2:The Court does not express any opinion as to what, if any, impact the issue of notice to defendant's counsel under the circumstances described herein and whether that notice was conveyed to defendant may have upon plaintiff's claim for relief for default, which is issue that can be addressed in briefing when or if plaintiff elects to re-file the motion seeking a default judgment.
Footnote 3:To the extent this motion could be construed as a motion for leave to reargue or renew pursuant to CPLR 2221, the Court declines to do so. Plaintiff (1) did not mark this motion as seeking leave to reargue or renew pursuant to CPLR 2221(d) or (e); (2) did not seek to have this motion assigned to the judge who previously ruled on this action pursuant to CPLR 2221(a); (3) does not allege any law or facts misapprehended previously; and (4) does not allege any new facts that could not have been alleged in plaintiff's earlier motion. Particularly as the email from defendant's counsel's firm appears to have been sent on January 14, 2021, over six months prior to plaintiff's first motion for default, which appears to have been filed on or about August 2, 2021 according to the Court's records, the interests of justice do not compel such relief.
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