Before the court are a set of motions by order to show cause, in which the law firm of Boies, Schiller & Flexner LLP seek an order relieving the firm as counsel for Shelby Modell, Leslie Modell and Shawn Modell (a/k/a Shawn Zimberg).

On July 13, 2012, this court issued a decision ^[FN1] granting the prior motions of Boies, Schiller & Flexner LLP, the firm representing Shelby Modell, Leslie Modell and Shawn Modell (a/k/a Shawn Zimberg), for an order relieving the firm as counsel in multiple proceedings and granting their clients a 30-day stay to obtain new counsel. The basis for the motions was the client's failure to pay counsel's fee for services.

Subsequently, rather than retain new counsel, Shelby Modell, Leslie Modell and Shawn Modell once again engaged Boies, Schiller & Flexner LLP who appeared again on their behalf.

Presently before the court are a second set of motions by order to show cause, filed by Boies, Schiller & Flexner LLP, for another order relieving the firm as counsel, once again on account of the clients' failure to pay for legal services rendered. As noted in this court's previous decision, an attorney may withdraw from representing a client wherethe client refuses to pay counsel's fees for services rendered (Tartaglione v Tiffany, 280 AD2d 543 [2d Dept 2001]). Accordingly, the second set of motions filed by Boies, Schiller & Flexner LLP to be relieved as counsel for Shelby Modell, Leslie Modell and Shawn Modell are granted.

The only remaining issue is counsel's request that the firm's clients be granted a 90 stay for the purpose of obtaining new counsel. The request is opposed by counsel for Charles Lubitz, co-executor and co-trustee under the decedent's will. He argues that the request is untimely in part, insofar as it pertains to the resignation and appointment of a successor co-trustee of the testamentary trusts, because the court previously granted the motion for summary judgment [*2]dismissing the objections and terminating those proceedings.^[FN2] Counsel for Charles Lubitz also asserts that there is no entitlement to a stay when an application to withdraw is based upon a failure to pay legal fees. Lastly, opposing counsel notes that the law firm presently withdrawing is the seventh law firm to represent Shelby Modell in the proceedings before the Surrogate's Court, and he maintains that the last motion to withdraw caused a delay of almost six months, after which the clients retained the same firm which had just withdrawn, which firm is now withdrawing once again.

Shelby Modell was unable to appear on the return date of the motions, but she was granted until Friday, February 15, 2013, to submit papers in support of staying these proceedings. Shelby Modell appeared in person on February 15, 2013 and assured the court that the papers she filed would immediately be served upon all parties who have appeared in these matters. The papers included her letter in support of a 30-day stay, which stay she claims was agreed to by Charles Lubitz, and photocopies of email exchanges concerning a 30-day stay. The other papers filed concerned Shelby Modell's inability to appear in court on the return date of February 13, 2013, due to her attendance at a funeral of her very close friend, at which she was asked to deliver the eulogy.

Withdrawal of an attorney is governed by CPLR 321 (b) and (c) . Subsection (c) 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 personally or in such manner as the court directs."

The circumstances in which a 30-day stay is mandated do not involve a situation where the withdrawal is the result of a client's conduct or choice but rather involve a withdrawal that is not within the client's control. Thus, the statute does not mandate a stay when an attorney withdraws for lack of payment. If it were otherwise, a party could obtain unlimited stays by refusing to pay his or her attorney.

The court finds that under the present facts, a stay is not mandated but may be granted at the discretion of the court. Unfortunately, the litigated proceedings before this court have previously been subject to repeated delays resulting from the hirings and firings of attorneys as well as multiple requests for adjournments. The court notes that although this court's July 13, 2013 decision clearly directed that no further adjournments would be granted, the record reflects that a further adjournment was subsequently sought and was granted. In the interest of keeping the administration of decedent's estate and testamentary trusts on course, so that they can be efficiently and expeditiously resolved without further undue delay, the court declines to grant a stay at this time. The present motion was filed on February 4, 2013, and the estate next appears on this court's calendar on March 19, 2013, at 2 p.m., in connection with the petition of Charles Lubitz, as co-executor of the estate, to compel the turnover of property. The parties in need of [*3]new counsel have had sufficient time to engage new counsel.

This decision constitutes the order of the court and no additional order need be submitted.

Dated: February 25, 2013

EDWARD W. McCARTY III

Judge of the

Surrogate's Court