Opinion
Index No. 504519/2019
12-12-2023
Jean W. Adolphe, RODNEY BURTON and ROSE EDWARDS, Plaintiffs, v. Gina Morcillo, SHAQUILLE HILL and MASOOD CAR LEASING INC., Defendant.
Unpublished Opinion
AARON D. MASLOW, Justice of the Supreme Court of the State of New York.
The following numbered papers were read in connection with this application: NYSCEF Doc Nos. 76 (proposed order to show cause), 77 (affirmation of Borislav Chernyy, Esq.), 78 (exhibit - police accident report), 79 (exhibit - summons and complaint).
Chernyy Law Office, P.C. has submitted a proposed order to show cause to bring on a motion for leave to withdraw as attorney for Plaintiff Rose Edwards (see NYSCEF Doc No. 76). The affirmation in support of Borislav Chernyy, Esq., alleges that the underlying action is for money damages to compensate Plaintiffs for injuries sustained in a motor vehicle accident on February 23, 2018. He alleges further:
6. The last time your affiant had contact with the Plaintiff, ROSE EDWARDS, was by telephone on July 19, 2021. Since July 2021 your affiant underwent multiple attempts to contact the Plaintiff, ROSE EDWARDS, but your affiant's office has not been able to reach the Plaintiff. Upon information and belief your affiant was informed that Plaintiff, ROSE EDWARDS, passed away. Your affiant does not have any knowledge regarding Plaintiff's, ROSE EDWARDS, date of death and place of death because said information was obtained from his friends. Your affiant's investigator conducted an investigation in order to obtain Plaintiff's, ROSE EDWARDS, death cerftificate [sic] or Plaintiff's, ROSE EDWARDS, location of death but he has not been able to locate a death certificate and the location of death for Plaintiff, ROSE EDWARDS, or verify that in fact Plaintiff, ROSE EDWARDS, passed away.(NYSCEF Doc No.77 ¶
CPLR 321 permits the attorney of record for a party to withdraw upon a showing that good cause exists to end the relationship with the client (see CPLR 321[b][2]). However, if Plaintiff Rose Edwards is indeed dead, this Court has no jurisdiction to grant the requested relief. "It is well settled that the death of a party divests a court of jurisdiction to conduct proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a) and any order rendered after the death of a party and before the substitution of a legal representative is void" (Griffin v Manning, 36 A.D.3d 530, 532 [1st Dept 2007] [internal citations omitted]). It stands to reason that any order relieving Plaintiff Rose Edwards' counsel "before the substitution of a legal representative" would be of no effect (Brightman v Corizon, Inc., 76 Misc.3d 438, 441 [Sup Ct, NY County 2022], citing Griffin v Manning, 36 A.D.3d 530). In addition, the Court observes that, in any event, the movant no longer represents Plaintiff Rose Edwards if she is deceased, as "the death of a party terminates his or her attorney's authority to act on behalf of the deceased party" (Vapnersh v Tabak, 131 A.D.3d 472, 474 [2d Dept 2015] [internal citations omitted]). If she is deceased, then this action must be stayed and counsel no longer represents Plaintiff Rose Edwards by operation of law (see Rumola v Maimonides Med. Ctr., 37 A.D.3d 696 [2d Dept 2007]; Cerutti v Kumar, 2022 WL 4287524 [Sup Ct, Kings County 2022]); a motion to be relived would not be necessary.
If indeed Plaintiff Rose Edwards is alive, then serving her with an order to show cause and supporting papers by overnight or other class of mail - as requested by moving counsel - would probably be for naught inasmuch as moving counsel clearly has no idea where she is as per his statement that contact with her has lapsed.
What is needed here is for a professional investigation to be undertaken as to whether Plaintiff Rose Edwards is deceased. If so, the heirs would need to be noticed and an administrator of her estate appointed. If the administrator is so inclined, the action could be discontinued or litigation resumed. Alternatively, Defendants have the option of ascertaining the names and locations of the heirs if Plaintiff Rose Edwards is deceased, for the purpose of either taking affirmative steps to effectuate substitution or providing notice of a motion to dismiss the complaint for failure to make a timely substitution. (See CPLR 1021; Cacani v Sam Pucciarelli Co., Inc., 78 Misc.3d 1214 [A], 2023 NY Slip Op 50225[U] [Sup Ct, Kings County 2023]; Pena v Rucon Props., LLC, 19 Misc.3d 655 [Sup Ct, Bronx County 2008].)
In undertaking to represent Plaintiff Rose Edwards, counsel committed to assiduously pursuing her interests in connection with the subject motor vehicle accident. The Rules of Professional Conduct require a lawyer to act with reasonable diligence and promptness in representing a client and not to neglect an entrusted legal matter (see Rules of Prof Conduct rule 1.3 [a], [b]). The bonds of representation cannot be so easily relinquished.
This Court declines to sign the proposed order to show cause. Under the circumstances described by moving counsel, an order relieving counsel could not be issued.
SO ORDERED.