The opinion
Bldg 44 Devs. LLC v Pace Cos. N.Y., LLC
2025 NY Slip Op 31342(U)
April 17, 2025
Supreme Court, New York County
Docket Number: Index No. 650390/2020
Judge: Andrea Masley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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publication.
INDEX NO. 650390/2020
NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 04/17/2025
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48
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BLDG 44 DEVELOPERS LLC, INDEX NO. 650390/2020
Plaintiff,
MOTION DATE --
-v-
MOTION SEQ. NO. 010
THE PACE COMPANIES NEW YORK, LLC D/B/A THE
PACE COMPANIES,
DECISION + ORDER ON
Defendant. MOTION
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THE PACE COMPANIES NEW YORK, LLC D/B/A THE PACE Third-Party
COMPANIES, Index No. 595631/2020
Plaintiff,
-against-
NOBLE CONSTRUCTION GROUP, LLC, RKI
CONSTRUCTION LIMITED LIABILITY COMPANY D/B/A RKI
CONSTRUCTION CORP., AUTOMATED LOGIC
CORPORATION, XTREME MECHANICAL INSULATION, LLC,
ELITE CONSULTING SYSTEMS CORP., and PREMIER
INSULATION SERVICES CORP.,
Defendants.
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HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 010) 384, 385, 386, 387,
388, 389, 390, 391
ATTORNEY -
were read on this motion to/for
DISQUALIFY/RELIEVE/SUBSTITUTE/WITHDRAW .
In motion sequence 010, Tarter Krinsky & Drogin LLP moves pursuant to CPLR
321 (b)(2) and rule 1.16 (c)(7) of the Rules of Professional Conduct (22 NYCRR 1200)
to withdraw as counsel for defendant The Pace Companies New York, LLC d/b/a The
Pace Companies because “[d]efendant has gone out of business. Tarter Krinsky &
Drogin LLP no longer has a client, is unable to communicate with a representative of the
650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Page 1 of 4
Motion No. 010
1 of 4
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INDEX NO. 650390/2020
NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 04/17/2025
client and will not be paid for its services.” (NYSCEF Doc. No. [NYSCEF] 385, Robert
A. Banner1 aff ¶ 3.) Defendant allegedly became insolvent and commenced assignment
for the benefit of creditors procedure. (Id. ¶¶ 4-6; NYSCEF 386, Notice of
Commencement of Assignment for the Benefit of Creditors; see Delaware Code
Annotated title 10, §§ 7381-7387 [assignment for benefit of creditors statute]; In re
WindMIL Therapeutics, Inc., 2024 Del Ch LEXIS 70, *3, 2024 WL 1092326, *2 [Del Ch,
Mar. 13, 2024, No. 2023-1294-PAF] [discussing assignment for benefit of creditors
statute].)
Plaintiff BLDG 44 Developers LLC takes no position as to the relief sought, but
requests that (i) the relief be conditioned upon the appearance of new counsel within 30
days and (ii) there be no stay.
“An attorney of record may withdraw or be changed 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.” (CPLR 321 [b][2].)
“Generally, there are three primary reasons allowing withdrawal of an attorney
from a case: failure of a party to remain in contact with counsel; deterioration of the
attorney-client relationship; nonpayment of legal fees.” (Countryman v Watertown
Hous. Auth., 13 Misc 3d 632, 633 [App Term, 1st Dept 2006] [citations omitted].) Here,
Tarter Krinsky & Drogin LLP has demonstrated that withdrawal is warranted. (NYSCEF
385, Banner aff ¶ 3.)
Accordingly, it is
1 Banner is a partner with Tarter Krinsky & Drogin LLP. (NYSCEF 385, Banner aff ¶ 1.)
650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Page 2 of 4
Motion No. 010
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INDEX NO. 650390/2020
NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 04/17/2025
ORDERED that Tarter Krinsky & Drogin LLP’s motion to be relieved as counsel
is granted upon meeting the following conditions:
ORDERED that Tarter Krinsky & Drogin LLP is directed to serve a copy of this
order with notice of entry upon defendant at its last known address within five business
days of this order, and by posting to the New York State Courts Electronic Filing System
(NYSCEF); and it is further
ORDERED that, together with the copy of this order with notice of entry served
upon defendant, Tarter Krinsky & Drogin LLP shall forward a notice directing defendant
to appoint a substitute attorney. Corporate defendants can only appear by counsel.
(CPLR 321 [a]; Park v Song, 61 Misc 3d 1047, 1050 [Sup Ct, NY County 2018].) If the
corporate defendant fails to appear by counsel, it may constitute a default; and it is
further
ORDERED that any new attorney retained by defendant shall file a notice of
appearance with the Clerk of the General Clerk’s Office and the Part 48 Clerk; and it is
further
ORDERED that the filing of a notice of appearance with the Clerk of the General
Clerk’s Office, shall be made in accordance with the procedures set forth in the Protocol
on Courthouse and County Clerk 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 the issue of the reasonable value of legal services rendered and
disbursements paid will be severed and referred to the Special Referee Clerk for
assignment to a Special Referee to hear and report if Tarter Krinsky & Drogin LLP or
650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Page 3 of 4
Motion No. 010
3 of 4
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NYSCEF DOC. NO. 392 RECEIVED NYSCEF: 04/17/2025
defendant informs the court of their request for such a referral within 30 days of the date
of this decision and order. Otherwise, such a referral is waived; and it is further
ORDERED that Tarter Krinsky & Drogin LLP shall turn over the file pertaining to
this case upon the fixing of the value of his services and the payment thereof (Yaron v
Yaron, 58 AD2d 752 [1st Dept 1977]) or the posting of a bond for the payment; and it is
further
ORDERED that there shall be no stay. (See Art Capital Bermuda Ltd. v Bank of
N.T. Butterfield & Sons Ltd., 213 AD3d 596, 597 [1st Dept 2023].)2
4/17/2025
DATE ANDREA MASLEY, J.S.C.
CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION
X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
2 Given the procedural posture of this case, whether the stay is imposed is practically
irrelevant. The note of issue was filed on October 9, 2023. (NYSCEF 347, NOI.) The
parties are awaiting decision on defendant’s motion for partial summary judgment.
650390/2020 BLDG 44 DEVELOPERS LLC vs. PACE COMPANIES NEW YORK, Page 4 of 4
Motion No. 010
4 of 4
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