Opinion
115/2007.
Decided August 26, 2011.
Eric Schneiderman, Attorney General of the State of New York, by Yueh-ru Chu, Esq., New York, NY, for the Plaintiff.
Sive, Paget Riesel, P.C., by Daniel Riesel and Elizabeth Knauer, Esqs., New York, NY, for the Defendants Ruth and William Winkle.
Clifford L. Davis, Esq., White Plains, New York [no papers on this motion], for Defendants Alan and Mary Risi.
Mallilo Grossman, by Matthew Porges, Esq., Flushing, New York, [no papers on this motion], for Defendant Kathleen Sellars.
The following papers numbered were read on this motion:
Notices of Motion, Affirm., Exhibits .................................... 1-3 Affirmations in Opposition ................................................ 4 Affirmations in Reply ..................................................... 5This is a motion, brought by order to show cause, by Sive, Paget Riesel, P.C., to withdraw as counsel for defendants Ruth Winkle and William Winkle ("the Winkle defendants") in a complex action concerning environmental damage which is being litigated aggressively by the Attorney General of the State of New York ("the State"). The Court's prior opinion discussing this litigation is found at State v Winkle, 31 Misc 3d 1228 (A), 2011 WL 1901845, 2011 NY Slip Op 50894(U) [Sup Ct Queens County 2011].
The Winkles have not opposed the motion to withdraw, and they owe their counsel, Sive, Paget Riesel, P.C., in excess of $60,000, even prior to the commencement of discovery. The Winkles have not made any payments to their counsel in the last two years. Further complicating the defense efforts is Ruth Winkle's illness, suffering Alzheimer's disease. The State has placed a lis pendens on the Winkles' home.
Although the Winkles do not oppose the motion to withdraw, the State, by Assistant Attorney General Yueh-ru Chu, opposes it vigorously, contending it is a mere stalling tactic. Both Sive, Paget Riesel, P.C., and the State cite cases in support of their respective positions on whether the failure to pay legal fees alone suffices to permit withdrawal of counsel, an issue that turns on whether the trial court's discretion was exercised providently or improvidently.
This Court's independent legal research has found cases going both ways. A review of the case law, and the circumstances of this complex litigation with the further drawback of the illness of Ruth Winkle convinces the undersigned that Sive, Paget Riesel, P.C., should not be forced to continue unwillingly its defense of the Winkles. Compare Alvarado-Vargas v 6422 Holdings Corp. , 85 AD3d 829 [2nd Dept. 2011] [permitting withdrawal]; Musachio v Musachio , 80 AD3d 738 [2nd Dept. 2011] [same]; Weiss v Spitzer , 46 AD3d 675 [2nd Dept. 2007] [same] with Kaufman v Kaufman , 63 AD3d 618, 618-619 [1st Dept. 2009] [denying motion to withdraw for nonpayment of legal fees]; Wilson v Wilson , 21 AD3d 548 [2nd Dept. 2005] [same]; Cashdan v Cashdan, 243 AD2d 598 [2nd Dept. 1997] [same].
In the present case, the Winkles have not made a payment to their counsel in two years. In Sentient Flight Group, LLC v Klein, 2011 WL 1431987 [SDNY 2011], the failure to pay legal bills in one year was sufficient for the court to grant the motion to withdraw as counsel. Accord, Callaway Golf Co. v Corporate Trader Inc., 2011 WL 2899192 [SDNY 2011] [Francis, M.J.]. As the court, in Centrifugal Force, Inc. v Softnet Communication, Inc., 2009 WL 969925 [SDNY 2009], stated:
Attorneys are not required to represent clients without remuneration, and the failure to pay invoices over an extended period is widely recognized as grounds for leave to withdraw. The Court is powerless to compel Mardka to pay the bills, and even more so to compel him to sell his home just so he can continue to be represented by counsel.
Id., slip op. at 2. In the case at bar, the Winkles would not be able to sell their home in light of the State's filing of a lis pendens on their home, the subject of this environmental litigation.
The motion by Sive, Paget Riesel, P.C., counsel for the Winkle defendants, is granted. The action is stayed through and including December 1, 2011, for the Winkle defendants to obtain new counsel. If the Winkle defendants fail to obtain new counsel, they shall defend this action pro se. Moreover, within 20 days of the date of this Order, Sive, Paget Riesel, P.C., the Winkle defendants's outgoing counsel shall provide to all parties to this action a written list of all of the last known addresses, telephone numbers including cell and mobile numbers, email addresses, and other relevant contact information, for each of the Winkles in order to enable the further pursuit of this lawsuit at the expiration of the aforementioned stay.
Outgoing defense counsel, Sive, Paget Riesel, P.C., must serve a copy of this order with notice of entry on all parties, including its former client, and file such proof with the Clerk of the Court. Although Sive, Paget Riesel, P.C., should have the responsibility of serving notice of entry that attaches a copy of this order as date stamped by the County Clerk, in the entry of expediting the lawsuit, any party may file notice of entry of this order.
Sive, Paget Riesel, P.C., in addition, shall turn over the entire file to defendant William Winkle, without the retention of a lien, in order to permit the action to go forward upon the expiration of the aforementioned stay. See, Centrifugal Force, Inc. v Softnet Communication, Inc., 2009 WL 969925 [SDNY 2009]. Turning over the entire file of Sive, Paget Riesel, P.C., will permit possible successor counsel to study it and/or allow and enable the Winkles to proceed pro se in the event that the Winkles cannot find other counsel and are constrained to represent themselves.
The foregoing constitutes the decision, order, and opinion of the Court.