Engelberg v. Perr

Engelberg v Perr (2019 NY Slip Op 03952) Engelberg v Perr 2019 NY Slip Op 03952 Decided on May 22, 2019 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 22, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN SYLVIA O. HINDS-RADIX, JJ. 2018-04180 (Index No. 606919/14) [*1]Michael Engelberg, etc., plaintiff, v Eliezer Perr, et al., defendants; Koffsky Schwalb, LLC, nonparty-appellant. Koffsky Schwalb, LLC, New York, NY (Efrem Schwalb of counsel), nonparty-appellant pro se. DECISION & ORDER In an action, inter alia, for an accounting, nonparty Koffsky Schwalb, LLC, appeals from an order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered March 1, 2018. The order denied the unopposed motion of nonparty Koffsky Schwalb, LLC, for leave to withdraw as counsel for the defendants Eliezer Perr and Milton Pollack. ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the motion of nonparty Koffsky Schwalb, LLC, for leave to withdraw as counsel for the defendants Eliezer Perr and Milton Pollack is granted; and it is further, ORDERED that within 30 days of the date of this decision and order, the appellant shall (1) serve the defendants Eliezer Perr and Milton Pollack with a copy of this decision and order by certified mail, and by ordinary mail, which shall constitute notice to appoint another attorney pursuant to CPLR 321(c), and (2) serve the other parties who have appeared in this action with a copy of this decision and order either (a) by ordinary mail upon counsel or, if proceeding pro se, upon that party personally, or (b) by electronic filing of this decision and order with notice of entry with the NYSCEF site thus causing transmission by the site of notification of receipt of the documents and by ordinary mail of a hard copy of this decision and order with notice of entry, upon any exempt attorney or party; and it is further, ORDERED that upon filing proof of such service with the Clerk of the Supreme Court, Nassau County, as set forth above and, if applicable, transmission of the notification, the appellant shall be relieved as counsel for the defendants Eliezer Perr and Milton Pollack; and it is further, ORDERED that all proceedings in this action are stayed until 30 days after service upon the defendants Eliezer Perr and Milton Pollack is complete. In its unopposed motion for leave to withdraw as counsel for the defendants Eliezer Perr and Milton Pollack (hereinafter together the defendants), the appellant established that the defendants were more than $70,000 in arrears in the payment of legal fees and had failed to cooperate in the representation by responding to telephone calls and written correspondence from the appellant. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant's motion (see Rules of Professional Conduct [22 NYCRR 1200.0] [*2]rule 1.16[c][5], [7]; Applebaum v Einstein, 163 AD3d 905; Arogana v Shaibani, 138 AD3d 649, 650). BALKIN, J.P., CHAMBERS, ROMAN and HINDS-RADIX, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court