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THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY WAS SUSPENDED; EVEN THOUGH THE ORDER GRANTING THE ATTORNEY’S MOTION TO WITHDRAW DIRECTED DEFENDANT TO RETAIN AN ATTORNEY OR GO AHEAD PRO SE, DEFENDANT WAS NEVER SERVED WITH A NOTICE TO APPOINT AN ATTORNEY REQUIRED BY CPLR 321; THEREFORE THE STAY WAS NOT LIFTED AND DEFENDANT’S MOTION TO VACATE THE SUMMARY JUDGMENT ORDER SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant (Simonsen) in this foreclosure action was never given notice to appoint new counsel after his attorney (Sirianni) was suspended and withdrew from the case. Even though, in granting the Sirianni’s motion to withdraw, the court directed defendant to retain new counsel or continue pro se, defendant was never provided with the notice required by CPLR 321(c). Therefore defendant’s motion to vacate the summary judgment order should have been granted:

CPLR 321(c) provides, inter alia, that “[i]f 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 [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party.” “[D]uring the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect” … , and “[o]rders or judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated” … . “It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days” … . The protections of CPLR 321(c) can be waived where the party elects to proceed pro se … . …

This action was automatically stayed by operation of CPLR 321(c) on … the effective date of Sirianni’s suspension from the practice of law. At no point was Simonsen provided, pursuant to CPLR 321(c), with the required notice to appoint another attorney, either by the court or opposing counsel. Moreover, the withdrawal order, which granted Sirianni’s motion pursuant to CPLR 321(b)(2) for leave to withdraw as counsel for Simonsen, had no practical effect as to whether the notice provision of CPLR 321(c) applied to this case … . … [T]he withdrawal order failed to direct service of a notice to appoint another attorney upon Simonsen, and there is no evidence in the record that Simonsen was ever served with a copy of the withdrawal order … . The record is also devoid of any evidence that … Simonsen waived the protections of CPLR 321(c) by electing to proceed pro se. Therefore, the automatic stay was not lifted until Simonsen moved, in effect, to vacate the summary judgment order … . JPMorgan Chase Bank, N.A. v Simonsen, 2022 NY Slip Op 05156, Second Dept 9-14-22

Practice Point: As soon as defendant’s attorney was suspended, the foreclosure action was stayed. Even though the court, in its order granting the attorney’s motion to withdraw, directed defendant to retain new counsel or go ahead pro se, defendant was never given notice to appoint another attorney required by CPLR 321. Therefore the stay was not lifted and defendant’s motion to vacate the summary judgment order should have been granted.

 

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