Preview
FILED: KINGS COUNTY CLERK 12/08/2023 06:03 PM INDEX NO. 504682/2023
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MI-KEE-TRO METAL MANUFACTURING, INC.
d/b/a MKT METAL MANUFACTURING,
Index No. 504682/2023
Plaintiff,
- against -
FORTIS DUMBO ACQUISITION LLC, URBAN
ATELIER GROUP, LLC, THE PACE COMPANIES
NEW YORK LLC, J.A.G. AIR CONDITIONER
CORP., ECONOMY RHVAC SUPPLY LLC,
SUNBELT RENTALS INC., CORE & MAIN LP, and
ARCH INSURANCE COMPANY,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT
OF MOTION TO WITHDRAW
MEISTER SEELIG & FEIN PLLC
125 Park Avenue, 7th Floor
New York, New York 10017
Tel: (212) 655-3500
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Michael P. Regan, Esq. (“Regan”) of Meister Seelig & Fein, PLLC (“MSF”) respectfully
submits this memorandum of law in support of its motion, brought by Order to Show Cause, for
an Order:
(a) Pursuant to CPLR § 321(b)(2) and Rule 1.16(c) of the New York Rules of
Professional Conduct (“RPC”), permitting Michael Regan to withdraw as
counsel of record for defendant Fortis Dumbo Acquisition LLC (“Fortis”); and
(b) granting such other and further relief as this Court deems just and proper.
PRELIMINARY STATEMENT
By this application, the undersigned respectfully seeks permission to withdraw as counsel
of record for Fortis due to: (i) a fundamental disagreement resulting in a complete breakdown of
the working relationship between attorney and client on all matters; (ii) “irreconcilable
differences” which both sides have recognized to exist in writing; (iii) complete lack of
communication between attorney and client for weeks; and (iv) the client’s refusal to pay MSF
any money for its services.
FACTUAL BACKGROUND
The Court is respectfully referred to the accompanying Affirmation of Michael P. Regan
for a detailed recitation of the facts relevant to MSF’s application.
ARGUMENT
I. MSF SHOULD BE GRANTED PERMISSION TO WITHDRAW
AS COUNSEL OF RECORD
Under CPLR § 321(b)(2), an attorney may withdraw as counsel of record for a party in a
pending litigation “by order of the court in which the action is pending, upon motion on such notice
to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a
party appears without an attorney, to the party, and to any other person, as the court may direct.”
See CPLR § 321(b)(2).
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RPC 1.16(c) permits an attorney to withdraw from representing a client when: (i) the client
and lawyer have a fundamental disagreement; (ii) the client disregards an agreement to the lawyer
as to payment; (iii) the working relationship and communication between the client and lawyer
completely breaks down; (iv) the client freely assents to the termination; and (v) the lawyer
believes, in good faith, that good cause exists for withdrawal. The decision to grant or deny a
motion to withdraw “lies within the discretion of the trial court.” Applebaum v. Einstein, 163
A.D.3d 905, 907 (2d Dep’t 2018) (quoting Musachio v. Musachio, 80 A.D.3d 738, 738 (2d Dep’t
2011)).
In applying these authorities, New York courts permit counsel of record to withdraw “upon
a showing of good and sufficient cause, and reasonable notice to the client.” See Mason v. MTA
New York City Transit, 38 A.D.3d 258, 258 (1st Dep’t 2007); Matter of Tierra C., 227 A.D.2d 994,
994 (4th Dep’t 1996).
As set forth in the accompanying Affirmation of Michael P. Regan, on November 15, 2023,
it was clear based on a phone conversation between the client (Fortis Property Group) and the
undersigned that the attorney-client relationship cannot continue due to a fundamental
disagreement on an issue related to the various Maiden Lane litigation matters. Since that
conversation, the undersigned has had no substantive communication with Fortis ownership
regarding this matter or any other litigation matters.
Moreover, it is well-settled that a lawyer may withdraw from representing a client if the
client insists upon taking action with which the lawyer has a fundamental disagreement. See
Ferdico v. Zweig, 82 A.D.3d 1151, 1153 (2d Dep’t 2011). That fundamental disagreement has
resulted in a complete breakdown of the attorney-client relationship. The “irreconcilable
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differences” between MSF and Fortis were recognized by both sides, in writing, on November 17.
If the Court requires more specificity, MSF will provide more information in camera.
The undersigned has already advised Fortis that he will no longer serve as its outside
general counsel. MSF also filed motions to withdraw in several cases. Fortis has not opposed the
several requests to withdraw. Thus, Fortis freely assents to end the attorney-client relationship.
MSF’s motion to withdraw was granted by the Court (the Hon. Barry Ostrager) – on the same basis
– in MREF REIT Lender 2 LLC, et al. v. FPG Maiden Holdings, LLC, et al., Index No.
653189/2022 and in several related cases.
Further, Fortis has refused to pay MSF for its work. The outstanding balance is currently
in excess of $100,000. Pursuant to the engagement agreement, Fortis was required to pay the bills
for September time by November 20. Fortis has refused to do so. Fortis was also required to make
a payment when the fees meet or exceed $75,000. Fortis has ignored that obligation as well. Thus,
MSF should be allowed to withdraw. Matter of Lenk, 218 A.D.2d 802, 802 (2d Dep’t 1995).
CONCLUSION
For all of the foregoing the reasons, the undersigned respectfully requests the Court enter
an Order: (i) pursuant to CPLR § 321(b)(2) and RPC 1.16(c), permitting the undersigned to
withdraw as counsel of record for Fortis; and (ii) granting such other and further relief as this Court
deems just and proper.
Dated: New York, New York
December 7, 2023
MEISTER SEELIG & FEIN PLLC
By:___/s/ Michael P. Regan_________
Michael P. Regan
125 Park Avenue, 7th Floor
New York, New York 10017
(212) 655-3500
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FILED: KINGS COUNTY CLERK 12/08/2023 06:03 PM INDEX NO. 504682/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X MI-KEE-TRO METAL MANUFACTURING, INC. d/b/a MKT METAL MANUFACTURING, Index No. 504682/2023 Plaintiff, - against - FORTIS DUMBO ACQUISITION LLC, URBAN ATELIER GROUP, LLC, THE PACE COMPANIES NEW YORK LLC, J.A.G. AIR CONDITIONER CORP., ECONOMY RHVAC SUPPLY LLC, SUNBELT RENTALS INC., CORE & MAIN LP, and ARCH INSURANCE COMPANY, Defendants. -----------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF MOTION TO WITHDRAW MEISTER SEELIG & FEIN PLLC 125 Park Avenue, 7th Floor New York, New York 10017 Tel: (212) 655-3500 1 of 4 FILED: KINGS COUNTY CLERK 12/08/2023 06:03 PM INDEX NO. 504682/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/08/2023 Michael P. Regan, Esq. (“Regan”) of Meister Seelig & Fein, PLLC (“MSF”) respectfully submits this memorandum of law in support of its motion, brought by Order to Show Cause, for an Order: (a) Pursuant to CPLR § 321(b)(2) and Rule 1.16(c) of the New York Rules of Professional Conduct (“RPC”), permitting Michael Regan to withdraw as counsel of record for defendant Fortis Dumbo Acquisition LLC (“Fortis”); and (b) granting such other and further relief as this Court deems just and proper. PRELIMINARY STATEMENT By this application, the undersigned respectfully seeks permission to withdraw as counsel of record for Fortis due to: (i) a fundamental disagreement resulting in a complete breakdown of the working relationship between attorney and client on all matters; (ii) “irreconcilable differences” which both sides have recognized to exist in writing; (iii) complete lack of communication between attorney and client for weeks; and (iv) the client’s refusal to pay MSF any money for its services. FACTUAL BACKGROUND The Court is respectfully referred to the accompanying Affirmation of Michael P. Regan for a detailed recitation of the facts relevant to MSF’s application. ARGUMENT I. MSF SHOULD BE GRANTED PERMISSION TO WITHDRAW AS COUNSEL OF RECORD Under CPLR § 321(b)(2), an attorney may withdraw as counsel of record for a party in a pending litigation “by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.” See CPLR § 321(b)(2). 1 2 of 4 FILED: KINGS COUNTY CLERK 12/08/2023 06:03 PM INDEX NO. 504682/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/08/2023 RPC 1.16(c) permits an attorney to withdraw from representing a client when: (i) the client and lawyer have a fundamental disagreement; (ii) the client disregards an agreement to the lawyer as to payment; (iii) the working relationship and communication between the client and lawyer completely breaks down; (iv) the client freely assents to the termination; and (v) the lawyer believes, in good faith, that good cause exists for withdrawal. The decision to grant or deny a motion to withdraw “lies within the discretion of the trial court.” Applebaum v. Einstein, 163 A.D.3d 905, 907 (2d Dep’t 2018) (quoting Musachio v. Musachio, 80 A.D.3d 738, 738 (2d Dep’t 2011)). In applying these authorities, New York courts permit counsel of record to withdraw “upon a showing of good and sufficient cause, and reasonable notice to the client.” See Mason v. MTA New York City Transit, 38 A.D.3d 258, 258 (1st Dep’t 2007); Matter of Tierra C., 227 A.D.2d 994, 994 (4th Dep’t 1996). As set forth in the accompanying Affirmation of Michael P. Regan, on November 15, 2023, it was clear based on a phone conversation between the client (Fortis Property Group) and the undersigned that the attorney-client relationship cannot continue due to a fundamental disagreement on an issue related to the various Maiden Lane litigation matters. Since that conversation, the undersigned has had no substantive communication with Fortis ownership regarding this matter or any other litigation matters. Moreover, it is well-settled that a lawyer may withdraw from representing a client if the client insists upon taking action with which the lawyer has a fundamental disagreement. See Ferdico v. Zweig, 82 A.D.3d 1151, 1153 (2d Dep’t 2011). That fundamental disagreement has resulted in a complete breakdown of the attorney-client relationship. The “irreconcilable 2 3 of 4 FILED: KINGS COUNTY CLERK 12/08/2023 06:03 PM INDEX NO. 504682/2023 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/08/2023 differences” between MSF and Fortis were recognized by both sides, in writing, on November 17. If the Court requires more specificity, MSF will provide more information in camera. The undersigned has already advised Fortis that he will no longer serve as its outside general counsel. MSF also filed motions to withdraw in several cases. Fortis has not opposed the several requests to withdraw. Thus, Fortis freely assents to end the attorney-client relationship. MSF’s motion to withdraw was granted by the Court (the Hon. Barry Ostrager) – on the same basis – in MREF REIT Lender 2 LLC, et al. v. FPG Maiden Holdings, LLC, et al., Index No. 653189/2022 and in several related cases. Further, Fortis has refused to pay MSF for its work. The outstanding balance is currently in excess of $100,000. Pursuant to the engagement agreement, Fortis was required to pay the bills for September time by November 20. Fortis has refused to do so. Fortis was also required to make a payment when the fees meet or exceed $75,000. Fortis has ignored that obligation as well. Thus, MSF should be allowed to withdraw. Matter of Lenk, 218 A.D.2d 802, 802 (2d Dep’t 1995). CONCLUSION For all of the foregoing the reasons, the undersigned respectfully requests the Court enter an Order: (i) pursuant to CPLR § 321(b)(2) and RPC 1.16(c), permitting the undersigned to withdraw as counsel of record for Fortis; and (ii) granting such other and further relief as this Court deems just and proper. Dated: New York, New York December 7, 2023 MEISTER SEELIG & FEIN PLLC By:___/s/ Michael P. Regan_________ Michael P. Regan 125 Park Avenue, 7th Floor New York, New York 10017 (212) 655-3500 3 4 of 4