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CPLR 321(c) and the Death, Removal or Disability of Counsel

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  • Posted on: Oct 27 2023

By Jonathan H. Freiberger

Once an attorney appears in an action on behalf of a client and becomes the attorney of record, the client is free to change counsel by filing with the clerk, a substitution of counsel stipulation, which must also be served on “the attorneys for all parties in the action or, if a party appears without an attorney, to the party.”  CPLR 321(b)(1).   Additionally, an attorney of record “may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.”  CPLR 321(b)(2).  

What happens, however, when a litigant’s attorney must be replaced due to “death, removal or disability”?  This question is answered by CPLR 321(c), which provides:

If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.

CPLR 321(c) “protects [a] client by automatically staying [an] action from the date of the disabling event.”  Wells Fargo Bank, N.A. v. Kurian, 197 A.D.3d 173, 176 (2nd Dep’t 2021) (citations omitted).  “The obvious purpose of the stay is to vest the party who has lost counsel with a reasonable opportunity to obtain new counsel before further proceedings are taken and thereby avoid prejudice that might conceivably arise from the absence of counsel in the interim.” Id.  (Citations omitted.) “During the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect.”  JPMorgan Chase Bank, Nat. Ass’n v. Simonsen, 208 A.D.3d 1167, 1169 (2nd Dep’t 2022) (citations, internal quotation marks and brackets omitted).  It is up to opposing counsel to “bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days.”  Id.  

The protections of CPLR 321(c) can be waived by appearing pro se or by retaining “a new counsel who formally appears in the action.”  Id.  Counsel for the defendant in Kurian, supra, was suspended from the practice of law during the pendency of a mortgage foreclosure litigation, which triggered the stay provisions of CPLR 321(c).  One year later, the plaintiff moved for summary judgment but did not first serve a notice to appoint new counsel pursuant to CPLR 321(c) – perhaps not knowing of the suspension.  New counsel appeared and opposed the motion and cross-moved to dismiss the complaint and the court considered those papers.  The motion court granted plaintiff’s motion and denied defendant’s cross-motion.  Defendant’s pro-se appeal from this order was never perfected. Thereafter, plaintiff’s unopposed motion for a judgment of foreclosure and sale was granted.  Subsequently, defendant’s third counsel moved by order to show cause to stay the sale because “on the date that the plaintiff filed its initial motion, inter alia, for summary judgment and for an order of reference, the motion was invalid, and any orders predicated upon those papers were null and void.”   The motion was denied, and the defendant appealed.

In affirming the motion court, the Second Department in Kurian recognized that the “appeal presents a simple issue involving the straightforward provisions of CPLR 321(c), but in a factual posture that is of first impression in the Second Department.”  Kurian, 197 A.D.3d at 174.  The Court found that the defendant waived her right to make an argument under CPLR 321(c) and stated:

Therefore, we hold that even in the absence of service of a notice to appoint new counsel upon the unrepresented party as procedurally required by CPLR 321(c), a continuing stay under the statute may be waived by the unrepresented party’s affirmative conduct of retaining new counsel, effective as of the time that new counsel formally appears in an action. Here, since the defendant’s waiver of the stay occurred before her opposition papers were due in response to the plaintiff’s motion, inter alia, for summary judgment and for an order of reference, the fact that the plaintiff filed its motion on an earlier date, when the stay was still in effect, is of no moment. Further, in regards to the suspension of the original attorney of record, the defendant’s opposition papers and cross motion did not include any argument, at that time, that the motion before the Supreme Court violated the stay provisions of CPLR 321(c), further bolstering our conclusion that any issue regarding the existence of a stay had been waived.

Kurian, 197 A.D.3d at 174.

The Second Department addressed CPLR 321(c) on October 25, 2023, in Desiderio v. Wilgosz.  The plaintiff in Desiderio commenced an action alleging that he performed work for the defendants and was not paid.  A clerk’s judgment was entered upon defendant’s failure to answer the complaint.  “Thereafter, the plaintiff filed separate motions seeking to compel the turnover of certain funds, to compel [the defendant] to comply with a subpoena and for sanctions against [the defendant], to hold [the defendant] in contempt, and to enforce the … judgment.”  The motion court granted the defendant’s motion to vacate the judgment pursuant to CPLR 5105(a).  Defendant retained a lawyer who appeared and interposed an answer, but was later suspended from the practice of law.  The motion court denied plaintiff’s motions related to the enforcement of the judgment and granted the defendant’s motion to vacate the judgment. On the plaintiff’s appeal, the Second Department affirmed but on different grounds based on CPLR 321(c), and stated:

Here, the defendants’ attorney was suspended from the practice of law effective May 18, 2020. Thereafter, the defendants were not served with a notice to appoint another attorney, and the Supreme Court did not grant leave to resume the proceedings. Since another attorney did not appear on behalf of the defendants until September 24, 2020, an automatic stay was in place when the judgment was entered on July 13, 2020. Contrary to the plaintiff’s contention, even assuming that the defendants improperly raised this issue for the first time in their reply papers, they properly raised this issue on appeal. Accordingly, the court properly granted the defendants’ motion to vacate the … judgment.  [Citations omitted.]

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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