Opinion
Index No. 30168-2017E
03-22-2021
CARLOS RENTAS, Plaintiff, v. PARKASH 4768 LLC and VED PARKASH, Defendants
Unpublished Opinion
PRESENT: HON. ELIZABETH A. TAYLOR JUDGE
DECISION/ORDER
Elizabeth A. Taylor, Judge
The following papers numbered 1 to___read on this motion.____
No On Calendar of PAPERS NUMBERED
Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed----------------------------1-2
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Affidavit
Pleadings -- Exhibit
Stipulation -- Referee's Report -Minutes
Filed papers
Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows:
Motion pursuant to CPLR 3126 to dismiss the complaint is denied, on default, with leave to renew as the motion was made while the action was stayed.
On October 26, 2017, plaintiff commenced this personal injury action against defendants, the owners and operators of the apartment building in which he was a tenant, alleging that he was injured when the bathroom ceiling in his apartment collapsed on top of him. According to defendants, plaintiff has yet to appear for an examination before trial, despite deadlines for same having been set in multiple discovery orders. Defendants now move to dismiss the complaint due to plaintiff's alleged continual failure to prosecute this action.
Subin Associates, LLP (hereafter, "the Subin firm") commenced this action on plaintiff's behalf by e-filing the summons and complaint, and the defendants consented to participation in e-filing. As such, the instant motion was deemed served when it was e-filed (see Uniform Rules for Trial Courts 202.5-b [f][2][ii]). It is well-settled that the failure to properly serve a motion deprives a court of jurisdiction to hear the motion (see Matter of Mayra L. v Jose Ramon M., 132 A.D.3d 553, 554 [1st Dept 2015]; see also Nationstar Mtge., LLC v Chase, 147 A.D.3d 964, 965 [2d Dept 2017]; Matter of Gabriel v Morse, 145 A.D.3d 1401, 1402 [3d Dept 2016]; State Bank of Texas v Kaanam, LLC, 120 A.D.3d 900, 901 [4th Dept 2014]). Since the Subin firm previously moved to withdraw from representing plaintiff in this action, and defendants did not serve him personally with this motion, the court must first determine whether it can entertain the motion.
CPLR 2103(b) provides, in pertinent part, that "papers to be served upon a party in a pending action shall be served upon the party's attorney......Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated"' (Garafalo v Mayoka, 151 A.D.3d 1018, 1019 [2d Dept 2017] [brackets in original], quoting Moustakas v Bouloukos, 112 A.D.2d 981, 983 [2d Dept 1985]). Moreover,
[t]he purpose of CPLR 321 (b) is 'to afford protection to adverse parties, by eliminating disputes and uncertainty as to whether and when the authority of an attorney representing an opponent terminated,' and it 'has generally been construed to establish the authority of discharged counsel as to adverse parties and not as to the very party who discharged the attorney' (MacArthur v Hall, McNicol, Hamilton &Clark, 217 A.D.2d 429, 429-430 [1st Dept 1995], quoting Moustakas, 112 A.D.2d at 983, 984).
By order dated May 22, 2020, this court granted the Subin firm's motion to withdraw as plaintiffs counsel on condition that the firm do the following: 1) within 10 days of the entry of the order, serve plaintiff with a copy of the order, with notice of entry, at his last known address by regular mail and certified mail, return receipt requested; 2) within 20 days of the entry of the order, file and serve all parties with both a copy of the order, with notice of entry, and proof of service upon plaintiff of the order, with notice of entry, and 3) within 20 days of the entry of the order, file and provide all parties with an affirmation setting forth plaintiff's last known address. As the order was entered on May 29, 2020, the Subin firm should have complied with the first condition by June 8, 2020, and with the second and third conditions by June 18, 2020.
Defendants' counsel asserts in the affirmation in support of this motion that the Subin firm did not comply with any of the conditions set forth in the May 22, 2020 order. The second and third conditions provided for filing certain papers with the court evincing that the tasks described therein had been completed. However, there are no filings on the NYSCEF system indicating that the Subin firm timely filed and served any of the papers referenced in the second and third conditions. Accordingly, this court finds that the Subin firm is still plaintiffs counsel of record, due to its failure to comply with the explicit conditions set forth in the order for granting its request to be relieved under CPLR 321.
It is noted that the Subin firm is still listed as plaintiffs counsel on NYSCEF, whose confirmation notice indicates that the firm was automatically served with notice of this motion when defendants e-filed it on September 5, 2020. It is also noted that the Subin firm did not submit responsive papers challenging defendants' assertion that it failed to comply with the May 22, 2020 order, and was therefore still plaintiffs counsel in this action. The court thus finds that plaintiff was served via the Subin firm, as his counsel, thus establishing the court's jurisdiction to hear this motion.
The court must nonetheless deny defendants' motion, as this action was stayed at the time the motion was made. In its order of May 22, 2020, the court explicitly ruled that "[a]ll proceedings are stayed and the stay shall be lifted 120 days from the date of the filing of proof of service of a copy of this order with notice of entry upon [plaintiff] Carlos Rentas, to afford Mr. Rentas time to seek new legal representation (COVID-19)." Defendants assert that because the Subin firm took no steps to comply with the aforementioned conditions, they served the order with notice of entry upon the firm, as plaintiffs attorney, on August 10, 2020 and filed proof of service. Notwithstanding that the order directed that service be made upon plaintiff, rather than the Subin firm, the record contains no evidence that defendants filed their proof of service with the court. Rather, NYSCEF shows that it was not until September 15, 2020, 10 days after defendants made this motion, that the Subin firm filed proof of its September 9, 2020 service of the order with notice of entry upon plaintiff (see NYSCEF Doc. No. 90). Hence, by the express terms of the May 22, 2020 order, this action was stayed on that date and will remain so until the 120th day after the September 15, 2020 filing of proof of service of the order with notice of entry, i.e., January 13, 2021. The court therefore cannot consider the merits of defendants' motion, which was made, and noticed to be heard, during the pendency of the stay.
The court appreciates defendants' assertion, which is uncontroverted on this record, that they could not have served plaintiff personally with the May 22, 2020 order with notice of entry due to the Subin firm's failure to abide by the order's direction to provide an affirmation as to his last known address. However, this does not alter the fact that the record contains no proof that defendants actually served the order with notice of entry, or filed proof of such service. Not only does no such filing appear on NYSCEF, but Exhibit R to the motion, which defendants cite as evincing that they performed this task, contains a copy of the order with their notice of entry, dated August 10, 2020, but lacks an affidavit or any other proof of service (see NYSCEF Doc. No. 88).
Moreover, even if defendants' purported service of the May 22, 2020 order had complied with the order's terms, thereby apprising plaintiff of the Subin firm's potentially impending withdrawal, it would be fundamentally unfair to consider dismissing the complaint at this time because plaintiff would have been entitled to at least 120 days from the filing of proof of such service to obtain new counsel to prosecute this action. In any event, as noted, this action has been stayed since May 22, 2020, and so, even if defendants had properly served the order with notice of entry and filed proof of service on or about August 10, 2020, that would only move the stay's expiration date up by a few weeks, but would not retroactively authorize the making and noticing of a motion to be heard during the stay. Hence, under any view of the procedural chronology of this case, the court is constrained to find that defendants' motion is premature.
For the reasons articulated above, defendants' motion to dismiss the complaint is denied, with leave to renew as per the above.
Accordingly, movants are directed to contact the Subin firm to inform them that they have not been relieved as plaintiffs counsel as they have not complied with the conditions precedent as per the May 22, 2020 order.
The foregoing shall constitute the decision and order of this court.