S. Hirshowitz, New York, NY, nonparty-appellant pro se.
C. DILLON, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, BETSY
DECISION & ORDER
action to recover damages for breach of contract, nonparty
Melvin S. Hirshowitz appeals from two orders of the Supreme
Court, Nassau County (Stephen A. Bucaria, J.), entered
November 7, 2016, and May 12, 2017, respectively. The order
entered November 7, 2016, denied the unopposed motion of
nonparty Melvin S. Hirshowitz for leave to withdraw as
counsel for the plaintiff. The order entered May 12, 2017,
denied a subsequent unopposed motion for the same relief.
that the order entered November 7, 2016, is reversed, on the
law, on the facts, and in the exercise of discretion, without
costs or disbursements, and the appellant's motion for
leave to withdraw as counsel for the plaintiff is granted;
and it is further, ORDERED that the appeal from the order
entered May 12, 2017, is dismissed as academic, without costs
or disbursements, in light of our determination on the appeal
from the order entered November 7, 2016.
November 2014, the plaintiff retained Melvin S. Hirshowitz
(hereinafter the appellant) to represent him in connection
with claims he had against the defendant Aaron Einstein. The
plaintiff and the appellant signed a retainer agreement dated
November 19, 2014, and the plaintiff paid a retainer of $5,
000. After the retainer was exhausted, the appellant sent
regular monthly invoices to the plaintiff seeking payment for
professional services rendered for the period from February
1, 2015, through September 13, 2016. The plaintiff neither
challenged the invoices nor tendered any payment.
appellant first moved for leave to withdraw as the
plaintiff's attorney in February 2016. That motion was
denied in an order entered March 18, 2016.
order to show cause signed on September 26, 2016, the
appellant again moved for leave to withdraw. The motion was
supported by the appellant's affirmation, copies of the
retainer agreement, and 16 monthly invoices indicating that,
as of September 16, 2016, the plaintiff was in arrears in the
sum of $41, 561.41. In addition to arguing that the plaintiff
had failed to tender any payments except for the initial
retainer, the appellant also argued that the plaintiff, by
failing to provide the appellant with requested documents and
failing to communicate with him, exhibited a lack of
cooperation in the litigation leading to a breakdown in the
attorney-client relationship. The plaintiff did not respond
to, oppose, or otherwise move with respect to the
appellant's motion. In an order entered November 7, 2016,
the Supreme Court denied the motion.
April 2017, the appellant once again moved for leave to
withdraw on the grounds of nonpayment of legal fees and the
breakdown of the attorney-client relationship. The plaintiff
did not respond to, oppose, or otherwise move with respect to
the motion. In an order entered May 12, 2017, the Supreme
Court denied the motion with leave to renew after a
conference scheduled for June 1, 2017. The appellant appeals
from the orders entered November 7, 2016, and May 12, 2017.
The decision to grant or deny permission for counsel to
withdraw lies within the discretion of the trial court, and
the court's decision should not be overturned absent a
showing of an improvident exercise of discretion'"
(Musachio v Musachio, 80 A.D.3d 738, 738, quoting
Cashdan v Cashdan, 243 A.D.2d 598, 598). "An
attorney may be permitted to withdraw from employment where a
client refuses to pay reasonable legal fees" (Weiss
v Spitzer, 46 A.D.3d 675, 675; see Rules of
Professional Conduct [22 NYCRR 1200.0] rule 1.16[c]).
"Additionally, an attorney may withdraw from
representing a client if the client fails to cooperate in the
representation or otherwise renders the representation
unreasonably difficult for the lawyer to carry out employment
effectively'" (Aragona v Shaibani, 138
A.D.3d 649, 650, quoting Rules of Professional Conduct [22
NYCRR 1200.0] rule 1.16[c]).
in the September 2016 motion, the appellant established that
the plaintiff was in substantial arrears in the payment of
legal fees and failed to cooperate in his legal
representation. Moreover, the plaintiff did not oppose the
motion. Accordingly, the Supreme Court, in the order entered
November 7, 2016, improvidently exercised its discretion in
denying the appellant's motion (see Aragona v
Shaibani, 138 A.D.3d at 650; Misek-Falkoff v
Metropolitan Tr. Auth.,65 A.D.3d 576; cf. Musachio
v Musachio, 80 A.D.3d at 738; Winters v
Winters,25 A.D.3d 601). Since the court should have