You are here: / / ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER...
,

ALTHOUGH PLAINTIFF’S COUNSEL HAD NOTIFIED ALL PARTIES HE WAS NO LONGER REPRESENTING PLAINTIFF, THE PROPER PROCEDURE FOR WITHDRAWAL OF AN ATTORNEY OF RECORD HAD NOT BEEN FOLLOWED, THEREFORE THE STIPULATION OF DISCONTINUANCE SIGNED BY PLAINTIFF PRO SE WAS NOT VALID.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to vacate a stipulation of discontinuance should not have been denied. At the time plaintiff signed the discontinuance pro se, his attorney (Mulhern) had notified all parties he was no longer representing plaintiff, but the proper procedure for withdrawing as counsel had not been followed. Therefore the stipulation of discontinuance was not valid:

“Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause…,  an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute”… . “Until an attorney of record withdraws or is changed or discharged in the manner prescribed by CPLR 321, his [or her] authority as attorney of record for his [or her] client continues, as to adverse parties, unabated” … .

Here, at the time that the plaintiff executed the stipulation of discontinuance, he and Mulhern had not signed and filed a consent to change attorney form or sought a court order permitting Mulhern to withdraw as the plaintiff’s counsel. Thus, as to the defendants, Mulhern still was the plaintiff’s attorney … , and the plaintiff was not permitted to act pro se without consent of the court … . Accordingly, the plaintiff’s motion to vacate the stipulation of discontinuance should have been granted. Garafalo v Mayoka, 2017 NY Slip Op 05201, 2nd Dept 6-28-17

 

You might also like
PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE THE FIVE HOUSING COUNSELING AGENCIES LISTED IN THE RPAPL 1304 WERE DESIGNATED BY THE NYS DIVISION OF HOUSING AND COMMUNITY RENEWAL (DHCR) AND THEREFORE DID NOT DEMONSTRATE STRICT COMPLIANCE WITH RPAPL 1304 (SECOND DEPT).
City Provided Adequate Supervision at Beach—Drowning Action Dismissed
BANKRUPTCY EXCEPTION TO THE INSURED VS INSURED EXCLUSION IN THIS DIRECTORS & OFFICERS LIABILITY INSURANCE POLICY APPLIED TO THE CREDITOR TRUST FORMED TO PURSUE THE BANKRUPTCY ESTATE’S LEGAL CLAIMS ON BEHALF OF UNSECURED CREDITORS (FIRST DEPT).
CPLR 7003(1), WHICH REQUIRES A JUDGE TO FORFEIT $1000 FOR AN IMPROPER DENIAL OF HABEAS CORPUS RELIEF, IS UNCONSTITUTIONAL AS A VIOLATION OF THE COMPENSATION CLAUSE OF THE NYS CONSTITUTION AND AS A VIOLATION OF THE SEPARATION OF POWERS DOCTRINE (SECOND DEPT). ​
TOWN LAW PREEMPTED BY STATE LAW RE THE DISCHARGE SETBACK FOR A BOW AND ARROW (SECOND DEPT).
ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION MATTER WAS UNENFORCEABLE, THE ATTORNEY MAY BE ENTITLED TO PAYMENT UNDER A QUANTUM MERUIT THEORY.
NEGLIGENT MAINTENANCE OF THE PLAYGROUND CAUSE OF ACTION AGAINST THE SCHOOL DISTRICT SHOULD HAVE BEEN DISMISSED, ALLEGED VIOLATIONS OF AMERICAN SOCIETY OF TESTING MATERIAL AND CONSUMER PRODUCT SAFETY COMMISSION STANDARDS DO NOT RAISE A QUESTION OF FACT ABOUT NEGLIGENCE (SECOND DEPT).
Plaintiff Could Not Show Justifiable Reliance Upon Alleged Misrepresentations in a Stipulation

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANTS, OPERATORS OF A VIRGINIA HOTEL WHERE PLAINTIFF WAS INJURED IN A SHOWER,... TWO OF THE COUNTS TO WHICH DEFENDANT PLED GUILTY WERE NOT SUPPORTED BY THE FACTS...