Moray v. Koven & KrauseMoray v. Koven & Krause
OPINION OF THE COURT
On Dеcember 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiffs attorney. The summons with notice was apparently served on defendant on February 5, 2008.
On February 25, 2008, defendant served Goodman with a notiсe of appearance and a demand for a complaint. When the demand did not prompt a response, defendant on April 22, 2008 moved to dismiss the action pursuant to CPLR 3012 (b).
By letter dated Mаy 6, 2008, attorney Preston Leschins informed defendant’s professional liability insurance carrier
On May 23, 2008—the motion’s return date—defendant’s counsel had a conversation with Goodman, “who advised that he had been suspended from the practice of law months earlier”; at Goodman’s request, defendant’s counsel agreed to adjourn the motion to dismiss until June 13, 2008. Lаter that day, he spoke to Leschins, “who confirmed that he had consulted with plaintiff weeks earlier,” but “refused to state whether he would be appearing as attorney for plaintiff’ in the lawsuit.
On or nеar the adjourned return date, Goodman—indicating that he was mindful that his license had been “suspended on or about January 24, 2008” and was therefore “being careful not to practice law”—submitted a “factual” affidavit in opposition to the motion to dismiss. Styling himself as plaintiffs “former attorney,” Goodman stated that he had “advised [his] former client in writing of [his] situation and told him to get new counsel”; however, he did not say when he did this. Goodman further represented that he “[understood] that [plaintiff had] been diligently pursuing new counsel,” but had “not yet retained a new attorney” and was “still continuing to look for a new lawyer.”
Goodman explained that the summons with notice was served after his suspension because it had been given to the process server beforehand; he annexed to his affidavit a draft complаint that he claimed to have prepared prior to his suspension. The draft complaint alleged that defendant’s predecessor law firm had represented plaintiff “in a lawsuit involving [his] efforts tо purchase real property in Yonkers, NY,” which was dismissed pursuant to CPLR 3216 for want of prosecution. Goodman asked the court to deny defendant’s motion “in the interests of justice,” and to grant plaintiff 30 dаys to finalize the complaint with a new attorney.
On June 19, 2008, Supreme Court granted the motion and dismissed the action for nonservice of the complaint, observing that plaintiff had neither demonstrated a meritorious cause of
On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321 (c), which mandates that
“[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspendеd 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.”
On May 12, 2009, the Appellate Division affirmed Supreme Court’s order, concluding that the trial court “did not improvidently exercise its discretion in granting the defendant’s motion to dismiss the action” (
The command of CPLR 321 (c) is straightforward: if an attorney becomes disabled, “no further proceeding shall be taken in the action against the party for whom he appearеd, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either
“[d]uring the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days ... If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party” (id.).
The stay is meant to “afford a litigant, who has, through no act or fault of his own, bеen deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action” (Hendry v Hilton,
This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiffs attorney was suspended from the practiсe of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court’s order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip,
Defendant resists this outcome on two grounds. First, he points оut that CPLR 321 (c) permits further proceedings by “leave of the court.” Defendant contends that Supreme Court exercised this “express statutory authority to hear and grant
Second, defendant argues that plаintiff is foreclosed from bringing up CPLR 321 (c) for the first time on appeal, as the Appellate Division concluded. While we do not as a general rule resolve cases on grounds not raised in the trial court, the context here is unusual. We are dealing with a statute intended to protect litigants faced with the unexpected loss of legal representation. And there is no indication in this record that plaintiff sought to raise CPLR 321 (c) only after having conducted his lawsuit pro se for some period of time after his attorney became disabled (cf. Telmark, Inc. v Mills,
Accordingly, the order of the Appellate Division should be reversed, with costs, the complaint reinstated, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.
Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.
Order reversed, etc.
Notes
. As noted previously, the record reveals that Goodman was suspended from the practice of law in lаte January 2008, but not the date when Goodman advised plaintiff of the suspension, or whether or when plaintiff may have otherwise learned about Goodman’s disability.
. Plaintiff suggests that Supreme Court “lost jurisdiction” upon Goodman’s suspension; however, the statute says that the disability of a party’s attorney creates an automatic stay—not that it divests the court of jurisdiction.