Friday, November 4, 2016

CPLR 321 (C) AUTOMATIC STAY



CPLR 321 (c):  provides:

"Death, removal or disability of attorney.  If 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 appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

The stay is automatic. Most recently in DUANDRE CORP. v. GOLDEN KRUST CARIBBEAN BAKERY & GRILL, 2016 NY Slip Op 4461 - NY: Appellate Div., 1st Dept. 2016:

"The suspension of defendant's counsel during the pendency of this action resulted in an automatic stay of the proceedings against defendant until thirty days after notice to appoint another attorney was served upon him, or until the court granted leave to resume proceedings (CPLR 321[c]; Moray v Koven & Krause, Esqs., 15 NY3d 384, 388-390 [2010]). Because there was no compliance with the leave or notice requirements of CPLR 321(c), and the record demonstrates that defendant did not retain new counsel until February 2014, the automatic stay was in place when the November 22, 2013 judgment was entered based upon defendant's default. Accordingly, the judgment must be vacated. Defendant's failure to invoke CPLR 321(c) until submission of his reply papers on his motion does not result in a waiver of his argument (Moray, 15 NY3d at 390). Nor was he required to submit an affidavit of merit (Scirica v Colantonio, 111 AD3d 571, 572 [1st Dept 2013])."

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