The following e-filed documents, listed by NYSCEF under the application as: 27-46, 48, 50 were read on the application by Subin Associates, LLP for an order: 1. pursuant to CPLR 321, relieving SUBIN ASSOCIATES, LLP, as the attorneys for Plaintiff; and 2. pursuant to CPLR §2201, issuing a 45-day stay of all further proceedings including discovery deadlines and determination of any pending motions and/or conferences already scheduled in this case.

Upon the foregoing documents, it is ordered that the application by Subin Associates, LLP is granted for the following reasons:

On April 2, 2024, the Court signed the instant application by SUBIN ASSOCIATES, LLP (hereinafter "Subin") to be relieved as counsel for plaintiff pursuant to CPLR 321. The Court directed the application be returnable on May 22, 2024, and that the application be served upon plaintiff and defense counsel. Subin is now moving to be relieved as counsel for plaintiff pursuant to CPLR 321 because, upon the guidance of Subin's outside ethics counsel as well as New York State Bar Association Comment [3] to Rule 1.16, Subin asserts that it would not be appropriate for it to continue to litigate this matter pursuant to the New York Rules of Professional Conduct. Subin served the instant application upon the plaintiff and defense counsel as directed by the court. Plaintiff did not oppose the motion. In opposition, defendants argue that Subin failed to offer any justification for withdrawal or for an in camera hearing. Defendants request that Subin be ordered to provide grounds for withdrawal in open court. In the alternative, defendants request that if an in camera review is ordered, that Subin disclose any documents that would either constitute non-privileged information or qualify for an exception to privilege, such as under the crime-fraud exception.

By order, dated May 28, 2024, this Court directed that the instant application is held in abeyance pending an in camera hearing on July 8, 2024 at which Subin shall present relevant facts in support of the instant application. On July 8, 2024, this Court issued an order stating the following:

This Court held a hearing today, July 8, 2024, in Courtroom 46, at 10:30 A.M., during which time attorneys for plaintiff, SUBIN ASSOCIATES, LLP ("SUBIN"), presented argument in support of their motion to withdraw as counsel for plaintiff. Attorneys for defendants, CARIELLO LAW FIRM and GALLO VITUCCI KLAR LLP, presented arguments in opposition. Subsequently, this Court conducted an in camera review of Subin's basis for withdrawal. During this review, which consisted of a discussion with the attorney for Subin, this Court determined that the basis for withdrawal involved matters that required additional information concerning the manner in which plaintiff was referred to Subin. Based on this review, this Court also determined that this information could be relevant to the defense of this action and was best developed by defendants at an open court proceeding.

Accordingly, this Court holds plaintiff's counsel's Order to Show Cause in abeyance pending an in-person hearing, on August 21, 2024, in Courtroom 46, at 10:00 A.M., at which time SUBIN shall present an individual with knowledge of the referral process involved in this case and all relevant facts regarding its firm's request to withdraw as counsel. SUBIN shall also provide to defendants all documents related to the referral process involved in this case and all relevant facts regarding its firm's request to withdraw as counsel on or before August 8, 2024. A copy of this decision/order is being sent by email to the parties on July 8, 2024.

On August 21, 2024, Leslie Nizin, Esq. appeared before this Court as special counsel for Subin, along with Debra Scalise, Esq., of Scalise and Harrington, Esqs., as ethics counsel to Subin. Counsel for Defendants also appeared before the Court on August 21, 2024. After a lengthy hearing on that date, the Court reviewed in camera the Retaining Statement Subin filed in this matter. The Court determined that information concerning the referral source Subin provided to Defendants' counsel pursuant to the July 8, 20024 order sufficiently responded to that order. At the conclusion of the hearing on August 21, 2024 the Court reserved decision on Subin's application to relieved as counsel for Plaintiff. The Court shall now decide Subin's application to be relieved as counsel for Plaintiff pursuant to CPLR 321.

Generally, an attorney is permitted to withdraw as counsel upon "such notice . . . as the court may direct," after a reasonable "showing that good cause exists to end the attorney client relationship" and that the motion is not being made as a tactic to delay a hearing or trial (CPLR 321 [b] [2]; Matter of Cassini, 182 AD3d 13, 40 [2d Dept 2020]; see also Rivardeneria v New York City Health and Hospitals Corp., 306 AD2d 394 [2d Dept 2003]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (Bank of Am., N.A. v Chadha, 214 AD3d 695 [2d Dept 2023]). Break-downs of the attorney-client relationship, failure of cooperation by a client, and actions or requests by clients that would cause the attorney to violate the Rules of Professional Conduct by continuing representation, among other reasons, serve as good cause for ending the attorney-client relationship (see Farage v Ehrenberg, 124 AD3d 159, 165 [2d Dept 2014]; see also Green v Gasparini, 24 AD3d 505 [2d Dept 2005]).

"Where withdrawal may be accomplished simply on the basis of counsel's statement that professional considerations require it, no more should be disclosed" (NYS Bar Ethics Opinion 1057 [6/5/2015] at ¶ 14). Further, where withdrawal cannot be so accomplished, the court may conduct an in camera hearing to assess the validity of counsel's request (id. at ¶ 15). This practice is permitted to "prevent a party from being prejudiced by the application of counsel to withdraw" (ISC Holding AG v Nobel Biocare Investments, N. V., 759 F Supp 2d 289, 294 [SDNY 2010] [aff'd sub nom. ISC Holding AG v Nobel Biocare Fin. AG, 688 F3d 98 [2d Cir 2012]). "A judge may initiate or consider any ex parte communications when authorized by law to do so" (NY Rules of Chief Administrative Judge § 100.3 [B][3][e]).

Here the Court finds Subin's representation, that it filed the instant application to withdraw on the advice of its ethics counsel, satisfies the "good cause" standard for attorney withdrawal pursuant to the disciplinary rules which mandate withdrawal (see NY RPC 1.16 [b] and [c]). Indeed, when an attorney believes that continued representation may result in a violation of the disciplinary rules or laws, counsel is obligated to seek withdrawal (see Matter of Blatt, 217 AD3d 113 [2d Dept 2023]). Further, the Court finds that Mr. Nizin and Ms. Scalise sufficiently complied with the July 8, 2024 order.

The Court also denies defendants' request that Subin provide additional information regarding the referral source. Defendants' request is improper insofar as it asks the court to condition Subin's withdrawal on a breach of client confidence and/or of a violation of attorney-client privilege. Rule 1.6 (a) prohibits attorneys from "knowingly [revealing] confidential information to the disadvantage of a client or the for the advantage of the lawyer or a third person" absent 1) the consent of the client; 2) the disclosure is "impliedly authorized to advance the best interest of the client"; or 3) the disclosure is permitted by Rule 1.6 (b). None of the requirements in Rule 1.6 (b) apply here. Moreover, attorney-client privilege can only be waived by the client and generally survives the termination of the attorney-client relationship. Consequently, Subin is prohibited from revealing confidential or privileged information without the consent of the client (see CPLR 4503). Accordingly, the application by Subin to be relieved as counsel for plaintiff is granted.

This action is stayed until February 25, 2025, although the stay shall end earlier if plaintiff retains new counsel (Wells Fargo Bank, N.A. v Kurian, 197 AD3d 173 [2d Dept 2021]). This determination is made without prejudice to any legitimate discovery rights parties may have in this or any other properly commenced action. Subin shall serve this order upon plaintiff by the same means as the underlying application and upon defendants' counsel via NYSCEF within 10 days after entry of this order.