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Current Developments in the Commercial Divisions of the
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Posted: December 5, 2013

First Department Affirms Strict Reading of Rule Requiring Stay and Notice to Retain New Counsel

On November 26, 2013, the First Department issued a decision in Scirica v. Colantonio, 2013 N.Y. Slip Op. 07852, strictly enforcing CPLR 321(c), the rule that provides a thirty-day stay if an attorney is removed from a case.

CPLR 321(c) provides:

If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled 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 Scirica, “defendants’ counsel was disbarred during the pendency of” the action. The trial court issued an order on October 25, 2012, “directing defendants to appear with or by counsel on December 6, 2012,” but the order did not explicitly “put defendants on notice that they were required to find new counsel.” “Accordingly, the statutory 30–day period never began to run and the automatic stay was in place when the December 6, 2012 conference was held, when the court dismissed defendants’ counterclaims, and when it struck defendant’s answer.” For that reason, the First Department held that the trial court “properly granted defendants'” subsequent “motion to vacate these orders.”

CPLR 321(c) rarely comes up in litigation. Practitioners should remember, however, that if it does, it will be strictly enforced.

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