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ALTHOUGH AN INCOMPLETE CHANGE-OF-ATTORNEY STIPULATION WAS FILED BEFORE THE STIPULATION OF DISCONTINUANCE WAS FILED, THE STIPULATION OF DISCONTINUANCE REMAINED VALID AND ENFORCEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a stipulation of discontinuance executed by the plaintiff’s then attorney, and filed after plaintiff’s change-of-attorney stipulation was filed, was valid and enforceable. Plaintiff’s change-of-attorney stipulation was not signed by an agent or representative of the plaintiff:

” [A]n attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute'” … . Pursuant to CPLR 321(b), an attorney of record may be changed either by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party, with notice of the change given to the attorneys for all parties in the action, or by order of court upon notice to all parties. ” 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, the stipulation of discontinuance was executed by an attorney with the plaintiff’s then attorney of record … (hereinafter outgoing counsel). Though the plaintiff’s stipulation to change its attorney was filed prior to the date on which the stipulation of discontinuance was filed, and was signed by outgoing counsel and incoming counsel, no agent or representative of the plaintiff signed the change-of-attorney stipulation. Nor does the record establish that notification of the plaintiff’s change in attorney was provided to any other party, or to the appellant, prior to the date on which the stipulation of discontinuance was filed. Accordingly, the plaintiff neither filed a properly signed consent to change attorney form nor sought a court order permitting outgoing counsel to withdraw as the plaintiff’s attorney of record in accordance with CPLR 321(b) prior to the filing of the stipulation of discontinuance.  GMAC Mtge., LLC v Galvin, 2020 NY Slip Op 03405, Second Dept 6-17-20

 

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