The within action is one alleging breach of contract, breach of personal guarantee, and fraud in connection with a merchant cash advance contract entered into by Defendants, whereby they sold $450,000 in future receivables to Plaintiff, who paid $300,000 for them. The action was commenced on October 3, 2022.

The within motion returnable before this Court on Friday, May 30, 2025 (Motion Sequence No. 5), is one for summary judgment sought by Plaintiff. In reviewing the papers filed, the Court noted that no response has been interposed by Defendants despite the motion having been filed on March 18, 2025. The proof of service of the motion papers attests to the papers having been served on Defendants themselves by mail on March 18, 2025. No service was made on an attorney and NYSCEF lists no attorney for Defendants.

Puzzled by lack of service of the within motion on an attorney for Defendants, the Court perused the prior document history of this action on NYSCEF and discovered that Grant Phillips Law, PLLC (also "Defendants' counsel") had appeared for Defendants on October 13, 2022, when it filed an answer and served discovery demands.

An order to show cause was submitted by Defendants' counsel to be relieved as counsel for Defendants on April 27, 2023. The order to show cause was signed by the Court on May 8, 2023. Court records indicate that on June 9, 2023, the return day of the motion to be relieved [*2](Motion Sequence No. 2), the motion was marked off due to nonappearance by movant Defendants' counsel. The consequence of this is that Grant Phillips Law, PLLC remained counsel of record for Defendants. Therefore, Grant Phillips Law, PLLC had to be served by Plaintiff with the motion papers for the within summary judgment motion.

Despite remaining as counsel of record for Defendants, Grant Phillips Law, PLLC has not only not responded to the within motion but to several previous motions of Plaintiff seeking relief due to non-provision of discovery. In fact, an order on Motion Sequence No. 4 was issued on August 8, 2024 and entered on August 12, 2024, in which Defendants' answer was stricken to the extent that Defendants are precluded from testifying at trial, or submitting an affidavit in support of or in opposition to a dispositive motion on the issue of liability. This was after Defendants' failure to oppose Plaintiff's motion (Motion Sequence No. 3), wherein Plaintiff sought an order of preclusion for failure to respond to discovery requests. Despite not being served with the motion papers herein by Plaintiff, Defendants' counsel should have monitored NYSCEF on behalf of Defendants for any filings as it remains counsel of record.

It thus appears that said law firm has exhibited an ongoing neglect to represent the interests of Defendants. It is noted that Defendants' counsel did not respond to Motion Sequence No. 1 either (seeking to strike Defendants' answer for non-provision of discovery) — filed on March 14, 2023, before Defendants' counsel's order to show cause to be relieved was filed — in addition to not responding to Motion Sequence Nos. 3 and 4.

The Rules Governing Judicial Conduct enjoin that "[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (22 NYCRR Part 1200) shall take appropriate action" (Rules Governing Jud Conduct [22 NYCRR] § 100.3 [D] [2]).

The Rules of Professional Conduct for attorneys provide:

Rule 1.3: Diligence.

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not neglect a legal matter entrusted to the lawyer.

(c) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but the lawyer may withdraw as permitted under these Rules. (Id. rule 1.3.)

Neglecting the representation of a client, including the failure to respond to motions, is a serious matter (see Matter of Roth, 207 AD3d 150 [1st Dept 2022] [failure to respond to summary judgment motion]; Matter of Rosenberg, 123 AD3d 180 [2d Dept 2014] [failure to respond to summary judgment motion]).

Should the Court merely ignore the fact that Defendant's retained law firm here has not responded to Plaintiff's motions, or should it intervene in some manner? In the context of oral argument of a motion, where an attorney who appeared of counsel to counsel of record was significantly unprepared, including by reason of erring with respect to whom she represented, this Court held that it could not in good conscience continue argument, as "the maintenance of [minimum] professional standards in the courtroom" would be compromised (Matter of Adjournment of a Motion for Summary Judgment, 83 Misc 3d 229, 236 [Sup Ct, Kings County 2024] [internal quotation marks omitted]). The motion was adjourned for counsel of record to appear.

"A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law" (Rules Governing Jud Conduct [22 NYCRR] § 100.3 [B] [6]). The Court having come into knowledge before the impending May 30, 2025 oral argument of this summary judgment motion, that Defendants' counsel has not responded to prior motions and most likely will not otherwise respond to the instant one (especially since counsel was not served by mail), the Court feels obligated to fulfill its responsibility to "take appropriate action" (Rules Governing Jud Conduct [22 NYCRR] § 100.3 [D] [2]) by directing Grant Phillips Law, PLLC to appear in court this Friday, May 30, 2025, on behalf of Defendants with respect to the within summary judgment motion. Concomitantly the Court will satisfy the interest of maintaining minimal professional standards in the courtroom. At such time, the Court will determine how to proceed, especially since Defendants' counsel was not mailed a copy of Plaintiff's papers in support of the within motion, Motion Sequence No. 5.

Accordingly, it is hereby ORDERED as follows:

Grant Phillips Law, PLLC is directed to appear with respect to the within motion when it is called for oral argument this Friday, May 30, 2015, in Supreme Court, Kings County, Civil Term IAS Part 2, located in the Courthouse at 320 Jay Street, Courtroom 15.58. First call is at 9:30 a.m. All parties are encouraged to read IAS Part 2's Rules, viewable on the Unified Court System's website.