The opinion
Johnson v Willis
2024 NY Slip Op 30337(U)
January 29, 2024
Supreme Court, New York County
Docket Number: Index No. 805180/2017
Judge: John J. Kelley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
INDEX NO. 805180/2017
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. JOHN J. KELLEY PART 56M
Justice
--------------------X INDEX NO. 805180/2017
SHAWNTAE JOHNSON and MICHAEL JOHNSON, as
Administrators of the Estate of T AEDEN M. JOHNSON, MOTION DATE 07/27/2023
deceased,
MOTION SEQ. NO. 005
Plaintiffs,
-v-
VELEKA WILLIS, M.D., AMY MAGNESON, M.D., GALIT
STEINBERG, M.D., KIM CARAWAY, C.N.M., NEWYORK-
DECISION + ORDER ON
PRESBYTERIAN-THE UNIVERSITY HOSPITAL OF
COLUMBIA AND CORNELL, THE NEWYORK MOTION
PRESBYTERIAN HOSPITAL, and NEWYORK-
PRESBYTERIAN HEALTH CARE SYSTEM, INC.,
Defendants.
-------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 005) 79, 80, 82, 83, 84,
85,86,87,88,89,90, 91, 92
were read on this motion to/for ATTORNEY - RELIEVE/X-MOTION DISMISS
In this action to recover damages for medical malpractice, the plaintiff's attorney, Vera
Gretchyn Marino, Esq., moves pursuant to CPLR 321(b)(2) for leave to withdraw as counsel for
the plaintiffs. Although the defendants do not oppose the motion, they cross-move, pursuant to
CPLR 3126, to dismiss the complaint for the plaintiffs' failure to comply with prior discovery
orders and demands or, alternatively, to require the plaintiffs to be ready to prosecute this
action, with new counsel or pro se, to set a new date for a discovery conference, and to dismiss
the complaint if no one appears at the conference on behalf of the plaintiffs. The plaintiffs'
attorney opposes the cross motion. The court notes that it had directed the parties' attorneys
and the plaintiffs to appear on September 6, 2023 for oral argument of the motion and cross
motion. The defendants appeared by counsel, but neither the plaintiffs nor their attorney
appeared. The motion of the plaintiffs' attorney to be relieved as counsel is denied. The cross
motion is granted only to the extent that the court directs the parties' attorneys and the plaintiffs
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themselves to appear in person for a status conference on February 27, 2024 at 10:30 a.m.,
and that if no one appears on behalf of the plaintiffs, the complaint shall be dismissed pursuant
to 22 NYCRR 202.27(b), and the motion is otherwise denied.
The failure of the plaintiffs' attorney to appear for oral argument, standing alone,
warrants the denial of her motion to be relieved as counsel (see generally U.S. Bank, N.A. v
Hattim, 185 AD3d 450, 451 [1st Dept 20201).
In any event, the motion should be denied on the merits as well. CPLR 321 (b)(2}
provides that:
"[a]n 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."
An attorney's right to withdraw as counsel is not absolute (see Matter of Jamieko A., 193 AD2d
409, 410 [1st Dept 19931). As a general rule, an attorney may obtain leave of court to terminate
the attorney-client relationship at any time upon reasonable notice, for a good and sufficient
cause, including the client's failure to pay legal fees and the failure to cooperate in his or her
representation so as to cause a breakdown in that relationship (see 22 NYCRR 1200.0, Rule
1.16 [c]; Misek-Falkoff v Metro. Tr. Auth., 65 AD3d 576, 577 [2d Dept 2009]; Rivardemeria v
New York City Health and Hasps. Corp., 306 AD2d 394, 395 [2d Dept 2003]; Tartaglione v
Tiffany, 280 AD2d 543, 543 [2d Dept 2001]; Adler v Mitchell, 2022 NY Slip Op 50665[U], *2,
2022 NY Misc LEXIS 3194, *3 [Sup Ct, N.Y. County, Jul. 25, 20221). Thus, where an attorney
and his or her client evince "irreconcilable and irreparable differences that have destroyed their
ability to continue their attorney-client relationship," the attorney should be permitted to withdraw
as counsel (Associated Food Stores, Inc. v 2927 Eighth Ave. Corp., 2010 NY Slip Op 31916[U],
*2, 2010 NY Misc LEXIS 3338, *1 [Sup Ct, N.Y. County, Jun. 29, 20101). Nonetheless, "[t]he
intent of the rules requiring permission to withdraw is grounded on some client conduct that
substantially interferes with the attorney-client relationship" (Countryman v Watertown Hous.
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Auth., 13 Misc 3d 632, 633 [App Term, 1st Dept 2006]; see Kiernan v Kiernan, 233 AD2d 867,
868 [4th Dept 1996] [plaintiffs questioning of her attorneys' competence, strategy, and ethics
rendered it unreasonably difficult for her attorneys to carry out their obligations of
representation]). The decision to grant or deny permission for counsel to withdraw lies within
the discretion of the motion court (see Tartaglione v Tiffany, 280 AD2d at 543).
As the court explained in Diaz v New York Comprehensive Cardiology, PLLC (43 Misc
3d 759, 760 [Sup Ct, Kings County 2014]),
"Rule 1.16 [of the Rules of Professional Conduct] permits an attorney to ethically
withdraw from representing a client when the client's claim or defense 'is not
warranted under existing law and cannot be supported by good faith argument
for an extension, modification, or reversal of existing law' (see Rules of
Professional Conduct [22 NYCRR 1200.0]; rule 1.16[c]; [6]). Courts have found
circumstances permitting withdrawal under the former Disciplinary Rule to the
same effect. (See Code of Professional Responsibility DR 2-110 [c]; [22 NYCRR
1200.15 (c)]; Walkerv Mount Vernon Hosp., 5 AD3d 590 [2d Dept 2004];
Positano v Maimonides Med. Ctr., 238 AD2d 560, 561 [2d Dept 1997]; Wells v
Community Hosp. at Glen Cove, 120 AD2d 584, 585 [2d Dept 19861). But courts
have also found the circumstances not to warrant withdrawal pursuant to the rule.
(See Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007]; LeMin v Central
Suffolk Hosp., 169 AD2d 821, 821 [2d Dept 1991]; Rann v Lerner, 160 AD2d
922, 922 [2d Dept 1990]). Rule 1.16 recognizes that some prejudice might result
from the termination of the representation, even where withdrawal is permitted or
required. (See Rules of Professional Conduct [22 NYC RR 1200.0]; rule 1.16 [e]).
"Since an attorney presumably will not accept representation of a client whose
claim or defense is sufficiently questionable so as to allow later withdrawal under
the rule-or, at least, should not (see Estate of Mio/an v State of New York, 39
Misc 3d 1076, 1078 [Ct Cl 2013])-counsel's 'negative reassessment of the
merits of the plaintiff's case' (see Wells v Community Hosp., 120 AD2d at 585)
must be based on some change in circumstances as the matter progressed.
(See Kramer v Salvati, 88 AD2d 583, 583 [2d Dept 1982] [withdrawal purportedly
based on letter of medical expert more than three years after action commenced
where court found letter indicated some merit to action])."
An attorney seeking to withdraw must first make a proper showing with respect to the alleged
lack of merit of the action, as well as the client conduct that is alleged to make prosecution of
the case unreasonably difficult. Absent such showing, the motion to be relieved must be
denied (see Rann v Lerner, 160 AD2d 922, 922 [2d Dept 1990]). A mere disagreement
between counsel and the client as to the merits of an action, or how best to proceed, is an
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Motion No. 005
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insufficient basis upon which to grant an attorney's motion for leave to withdraw from
representation (see Scher v Mishkit, 2008 NY Misc LEXIS 712, 239 NYLJ 29 [Sup Ct, Suffolk
County, Feb. 1, 2008]).
Inasmuch as counsel's application here apparently is premised on a mere disagreement
with her clients as to the likelihood of success of the action, the court concludes that counsel is
not entitled to withdraw from representation, particularly because it likely would leave the
plaintiffs without any capacity to represent the estate of their deceased son, since a non-
attorney administrator of a decedent's estate is barred under Judiciary Law§ 478 from
appearing pro se on behalf of the estate, unless he or she is the sole beneficiary of an estate
that has no creditors (see Martins v Memorial Sloan Kettering Cancer Ctr., 215 AD3d 474, 475
[1st Dept 2023]; cf. Blunt v Northern Oneida County Landfill, 145 AD2d 913 [4th Dept 1988]
[non-attorney husband may not represent his wife in an action, but only himself]; cf. also
Discover Bank v Gilliam, 199 AD3d 645 [2d Dept 2021] [a person who holds a power of attorney
who is not also an attorney-at-law may not appear pro se on behalf of another nonlawyer]; Salt
Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 AD3d 452, 453 [1st Dept 2012]
[same]; Whitehead v Town House Equities, Ltd., 8 AD3d 369, 370-371 [2d Dept 2004] [same]).
That branch of the defendants' cross motion seeking to dismiss the complaint is denied,
inasmuch as the defendants' counsel failed to establish that she satisfied a condition precedent
to the submission of the motion, as set forth in 22 NYCRR 202.20-f(b), which requires that she
attest to "having conducted an in-person or telephonic conference, setting forth the date and
time of such conference, persons participating, and the length of time of the conference."
Moreover, the defendants failed to establish that the plaintiffs' alleged failure to proceed with
discovery was willful and contumacious. Nonetheless, the court grants the branch of the
defendants' cross motion seeking an additional status conference, and compelling either the
plaintiffs or their attorney to appear thereat lest the complaint be dismissed pursuant to 22
NYCRR 202.17(b).
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Accordingly, it is,
ORDERED that the motion of the plaintiffs' attorney is denied; and it is further,
ORDERED that the defendants' cross motion is granted to the extent that the court
directs the parties' attorneys and the plaintiffs themselves to appear in person for a status
conference on February 27, 2024 at 10:30 a.m., and that if no one appears on behalf of the
plaintiffs, the complaint shall be dismissed pursuant to 22 NYCRR 202.27(b}, and the cross
motion is otherwise denied.
This constitutes the Decision and Order of the court.
1/29/2024
DATE
MOTION: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED 0 DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
CROSS MOTION: CASE DISPOSED X NON-FINAL DISPOSITION
GRANTED □ DENIED X GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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Motion No. 005
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