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Posted: February 20, 2015

Court Cannot Rule on Pending Motion After Relieving Counsel

On February 17, 2015, the First Department issued a decision in Fan v. Sabin, 2015 NY Slip Op. 01400, holding that when a court relieves counsel, CPLR 321(c) prevents the court from continuing further proceedings until expiration of 30-day stay.

CPLR 321(c) provides:

If an attorney . . . is removed . . . at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.

In Fan, the defendant “moved for an order granting summary judgment pursuant to CPLR 3212, and sanctions in the amount of $10,000. [The plaintiff’s] counsel cross moved to be relieved as counsel and for an order staying the action for 30 days so that [the plaintiff] could retain new counsel.” When the parties appeared for argument on the defendant’s motion, the court granted the motion to be relieved as counsel, but also granted the defendant’s motion, which it treated as on to dismiss. The First Department reversed to dismissal, explaining:

When the court granted plaintiff’s counsel’s motion for leave to withdraw, further proceedings against plaintiff were stayed, by operation of CPLR 321(c), until 30 days after notice to appoint another attorney had been served upon her. While the stay was in effect, the court had no power to decide defendant’s motion for summary judgment dismissing the complaint. [T]he court should not have entertained a CPLR 3212 summary judgment motion, sua sponte converted it to a CPLR 3211(a)(1) motion, and then prevented plaintiff’s counsel from making arguments in opposition, leaving plaintiff without counsel to fend for herself.

We reject defendant’s argument that plaintiff was not entitled to the statutory stay because counsel’s desire to withdraw was due to her disagreements with him over strategy and was therefore her fault. [The plaintiff’s] counsel’s ill-advised publishing of his grievances with his client does not evidence the type of fault justifying a lack of a stay.

Furthermore, there is no evidence that [the plaintiff] was voluntarily discharging or consenting to the discharge of her attorney. [The defendant’s] argument that [the plaintiff] was never truly unrepresented is disingenuous at best, particularly since her outgoing counsel moved to be removed without filing any other papers, leaving [the plaintiff] facing an unopposed dismissal motion.

Last, it should be noted that although CPLR 321(c) provides that the action may continue with leave of court, the statutory provision for court leave was designed to allow an action to continue in cases where the stay of proceedings would produce undue hardship to the opposing party, as where the time to take an appeal or other action would run or where a provisional remedy is sought and speed is essential, circumstances not present in this case.

(Internal quotations and citations omitted).

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