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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

 

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