INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
SUPREME
COURT
COUNTY
OF
OF THE
OF NEW
STATE
YORK
NEW YORK
â€â€â€â€â€â€â€â€â€â€â€â€ ————X ------------------------------------------------------------------X
HERVE
et al,
LARREN,
: : :
Plaintiffs, -against-
Index
No.
654159/2015
: :
MARIO
JULIO
SANTO
et al,
DOMINGO, Defendants.
:
AFFIRMATION
:
KEVIN
OF
AINSWORTH
N.
: :
------------------------------------------------------------------X
KEVIN New
York,
N.
Levin's
Larren,
this
and
firm
the
Index
3.
have
inability
by
engaged
to work
for
related
No.
by
legal
and
this
Moreover,
another
with
Julio
Mario
practice
affirms
the
Cohn,
Ferris,
same
of
law
to
be
in the
true
firm
attorney
to
cause,
Rule
or unwilling
in
to pay
connection
has
advise
indicate
with
Mario
Julio
with
and
this
affirmation
in
State
of
under
the
this
our
action,
the
best
withdrawal.
3
1 of 9
regarding
interests
for
of
of the
Mintz
Conduct.
and
expenses
in
LLC
and
this
Herve
Actions" Actions").
"Related
the
Beik
Defendants
Defendants
v. Bidkind
with
of
support
fees
outstanding
Domingo
N'
of Professional
Rules
representation
differences
Defendants
the
of the
P.C.
Popeo,
Sheik
as counsel
relieved
significant
Santo
irreconcilable
that
Domingo
to be
1.16(c)
and
Glovsky
Santo
I submit
show
(collectively
attorney
that
Levin,
and
captioned
653453/2015
Mintz,
action.
to
§ 321(b)(2)
services
action,
this
order
are unable
Defendants
to
on
of
Defendant
in
to CPLR
pursuant
2.
for
brought
firm
the
(" Defendants" ("Defendants")
application,
action
of
attorneys
LLC
Entertainment
matter
statements
following
I am a member Levin" Levin"),
("Mintz
owed
the
to the
admitted
duly
of perjury:
1.
in this
makes
hereby
penalties
an attorney
AINSWORTH,
Defendants
Defendants.
Related
clients
Actions,
likely
will
and
our
be served
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
4.
several
Rule
pertinent
for
bases
a client
representing
of
1.16(c)
the
of
Professional
in
this
Rules
withdrawal
case.
It
NYCRR
(22
Conduct
states,
"[A]
ยง 1200.0)
lawyer
may
adverse
effect
provides
withdraw
from
when:
withdrawal
(1)
on
the
can
be accomplished of
interests
the
without
material
client;
...
the
(4)
client
insists
fundamental
(5)
the
client
the
lawyer
upon
action
taking
with
which
the
lawyer
has
a
disagreement;
disregards
deliberately as to expenses
an
agreement
or
obligation
to
or fees.
...
(7)
(8)
the
client
fails
cooperate
to
renders
the
representation
to carry
out
employment
the
lawyer's
best
of
representation
or
difficult
unreasonably
to work
the
the
otherwise
for
the
lawyer
effectively;
inability
interest
in
client
co-counsel
with
likely
will
in good
faith,
be
indicates
served
that
the
withdrawal;
by
[or] ...
the
(12)
lawyer
a tribunal, cause
New
5.
leave
has
v.
to
been
Erection
exist
231
for
requirements
Under
permitting
of our
279
Mintz
and
have
fees
A.D.2d
standard,
Levin
find
a showing
of
the
existence
good
and
found
consistently
and/or
deterioration
718
813,
647
will
in a matter
before
pending of
other
good
....
require
626,
engagement
tribunal
withdrawal;
legal
A.D.2d
this
the
courts
of
Inc.,
Trucking
Corp.,
6.
for
York
non-payment
M P.C.
that
as counsel
withdraw
believes
962
N.Y.S.2d
the
record
to withdraw
agreement
N.Y.S.2d
in
(2d
this
as counsel
regarding
4
2 of 9
that
sufficient
such
a showing
of
the
attorney/client
903
(3d
Dep't
Dep't
case
payment
before
exists
granting
where
there
Lade
relationship.
Winters
2011);
v. Rise
Steel
1996).
demonstrates
because
cause
Defendants
for
services
that
satisfactory
have
rendered,
not
reasons
fulfilled
cooperation,
the
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
and
RECEIVED NYSCEF: 04/23/2018
all
communication,
of
which
further
make
representation
of
Defendants
by
to represent
them
Mintz
Levin
in this
action
impractical.
7.
and
the
Defendants
Related
Retainer
Agreements
with
the
and
upon
receipt.
due
Retainer
The
Subject
to
reserves
Agreements
the
effect
on
court
or
with
a reasonable
Client
a Client
for
Expense
of
to
Levin
fees
timely
in the
monthly
bills
Related
Actions
237
in arrears
269
client's
(2d
(2d
have
failed
six
figures
for
services
for
the
reminders
last
and
several
on a monthly
from adverse
permission
from the
providing alternative
any
Client
counsel.
without
limitation,
engagement
this
letter,
Disbursement
Billing,
with
Firm
Client,
by
(attorney
2007)
of
legal
(good
rendered
fees);
cause
obligations
has
and
not
where
for
5
3 of 9
193
plaintiff
the
the
Retainer
received
Mintz
payment
do not
46
failed
[attorney]
to
pay
to carry
client
598
780,
779,
the
848
675,
the
[his]
Mintz
has
sent
in the
invoices.
N.Y.S.2d
was
$3,000
N.Y.S.2d
reasonable
out
by
services
to pay
675,
where
owe
Levin
for
intend
A.D.3d
A.D.2d
Agreement
Defendants
date,
litigation.
as counsel
v. Galvano,
difficult
in this
v. Spitzer,
gneiss
withdraw
To
apparently
to withdraw
Galvano
it unreasonably
but
Defendants
permitted
to
rendered
owed
See
under
as agreed.
already
months.
Dep't
"conduct
Firm's
their
meet
monies
is appropriate.
1993)
the
the
material
include,
of
disbursements,
withdrawal
Dep't
to
fees
in payment
terms
the
for
connection
Policies.
legal
in the
arrange might
or the
pay
and
Accordingly,
237,
of
any
Memorandum
Defendants
failing
to
withdrawal
Firm's
any
The
as follows:
things,
without
in
statements
requirements,
while
required),
Levin
render
objection and
obtaining
opportunity
the
breach
after
may
legal
notice
be
will
other
among
without
withdraw,
only
Levin
and
Mintz
by
Agreements" Agreements").
"Retainer
(the
charged
Mintz
rules
reasonable
that
be
provided,
(and
tribunal
Engagement
9.
to
upon
2015
agreements
to
that
ethical
right
representation,
Reasons
rates
provides
applicable
in September
retainer
hourly
of Defendants
payment
8.
to written
forth
set
Levin
Mintz
pursuant
Action,
its representation
basis
retained
268,
fees
employment
and
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
effectively" effectively");
722
v. Metropolitan
Misek-Falkoff
(2d
Dep't
(withdrawal
2009)
Tr.
appropriate
65
Auth.,
where
A.D.3d
client
576,
had
883
577,
accrued
$7,000
N.Y.S.2d
in
722,
legal
unpaid
expenses).
Procedural
Posture
10.
The
two
Related
11.
On January
sat
Actions
for
dormant
years,
on
decisions
pending
motions
to
dismiss.
to
dismiss
issued
the
12.
prior
that
a motion
action
withdraw
April
Doc
No.
to
in the
counsel
changed
a failure
of
and
pay
Order
(On
34.)
Related
fees
motion
on Defendant's
24,
January
this
2018,
Court
Action.)
on or about
to
as a result
2018,
a Decision
to dismiss
due
30,
issued
March
(Motion
a withdrawal
of
002).
counsel
(The
for
Plaintiffs'
after
2, 2018,
other
the
Related
defendants
in
action.)
13.
deadline
this
to
until
is stayed
on
Court
(NYSCEF
action.
in this
moved
this
2018,
this
Order
and
Plaintiffs
counsel
Action
in
claims
a Decision
29,
Defendants
for
action
Defendants
and
the
firm
is unwilling
to
their
other
have
attorney
Related
Defendants
that
has
been
scheduled
to be done
without
for
in this
paid.
being
us to be concerned
caused
Complaint.
is April
complaint
remains
work
the
answered
May action
our
current
conference
preliminary
in
9, 2018.
and
the
Moreover,
about
A
2018.
30,
the
stipulation,
By
ability
the
Related
conduct
to work
and
Action,
of
Defendants
effectively
with
our
and
them
Actions.
Additional
15.
do
work
yet
the
Action
Related
Substantial
not
answer
to
14.
in these
have
Facts
Shortly
regarding
Withdrawal
Favoring
after
strategy
the
Court
and
decided
evidence
the
motions
analysis.
6
4 of 9
to
dismiss,
we
began
working
with
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
On a telephone
16.
fees
that
would
be
contemplated
was
for
but
high,
Defendants
issues
pertinent
attorney
In
to Defendant
need
to
at that
you
time
do further
by
During
that
and
the
Related
In
in
person.
date;
an email
meeting,
and
urged
quick
If
We
to
sense
their
and
strategy
that
and
other
the
evaluating
and
sent
the
the
being
estimate
fee
aggressive
action.
for
or
on
attorney
evidence
materials
a growing
and
you
you
your
asked
decide
and
about
researching
Defendants'
disagreement
review. Defendants'
with
resolve
and
invoices
in
to continue
we
"If
part:
with
the
relationship
for
other
attorney
on
their
other
work
earlier
unpaid
an email
not
our
trust
attorneys,
we
accrued
fees
of
we
issues,
will
not
discovery."
or to advance
to Defendants
and
do
amount
counterclaims,
invoices
you
us as your
approximate
those
I sent
disagreement,
stating,
the
and
that
apparent
stated
answer
sent
the
1, 2018,
also
from
5, we
the
of
for
this
invoices
be
paid
he asked
to meet
performed
2018.
21.
that
March
drafted
to prepare
Action.
they
estimate
to be evaluated.
we
March
firm.
hear
and
indicated
continued
balance
That
hand
an
steps.
or about
we
to strategize,
began
next
another
"Until
On or about
23,
us
hire
and
at
time
Defendants
we
outstanding
relationship."
added,
work
March
with
our
and
20.
action
and
claims
with
meeting,
strategy
should
change
person
on
issues
provided
at that
Instead,
Actions,
the
and
Defendants
potential
we
of
evidence
"Stop."
that
Domingo
Santo
then
advice,
light
the
we
9, 2018,
February
say
February,
regarding
19.
on
about
Actions.
in
Related
late
By
of
additional
Based
or
light
not
met
to both
18.
other
for
then
2018.
on
Related
did
asked
We
15,
two
in
Defendants
17.
February
incurred
the
later
call
I said
I met
sent
with
I twice
we
Defendants' by
Defendants
raised
wanted
to
the
and
issue
resolve
of
any
our
fees;
issue
7
5 of 9
March
on
attorney
I provided
regarding
7, 2018,
fees.
or
an
about
estimate
Defendants
March
of
our
and
14,
fees
their
2018.
as of
other
INDEX NO. 654159/2015
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RECEIVED NYSCEF: 04/23/2018
me that
assured
attorney
remarked
attorney
of
understanding
22.
for
and
no
other
end
actions.
of
ludicrous
considering
to bare
to you
our
improving
and
relationship
I thereafter
dispute,
counsel
for
Plaintiffs
in
late
Santo
defendants'
a motion
regarding
represented
counsel
by
in this
action
additional
for
counterclaims.
to
Defendants
we
However,
28,
2018,
received
March,
no
do
Jessica
partner,
my
cannot
[sic]
with
I emailed
should
have
to
pay
the
find
to
deadlines
On Monday
am planning
back
will
upcoming
"I
you
with
and
end.
"We
You
we
Otherwise,
26.
part:
in
not
at a hearing
emails
5, 2018,
relationship.
Defendants
answer
March
things):
On April
this
in
other
meeting,
of
payment
urging
communication
our
our
regarding
further
any
work
on
Defendants
emailed
Catlow,
the
2
and
until
litigations
these
paid."
25.
to
Defendants'
of the
close
payment.
(among
are
the
helpful
very
were
negotiated
month
On or about
24.
fees
Action
reminder
before
been
At
concurred.
our
Related
their
an issue.
not
had
that
I also
sent
invoices
were
Defendants
other.
to file
We
outstanding
invoices
meeting
to withdraw.
23.
stated
the
in the
Defendants
invoices
fees
Understanding
permission
time
each
as plaintiff
Domingo
for
that
the
make
in the
April
9, 2018,
your
firm
position
me a few
motions
I am
days
other
(among
them
have
things):
for
substitute counsel."
as your
"It
us
I also
is time
in
both
informed
Actions.
point
an
but
today.
so that
I can
...." by
and
received
in
stated
to withdraw
Related
we
and
counsel
new
at some
that
more
Defendants
Wednesday
8
6 of 9
I also
I believe
properly
from
Santo
feel
that
that
we
look
into
the
are
stating,
in
invoices
is
Domingo
fee
in
on
good
everything.
the
terms
and
ask
...
I will
get
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
On
27.
in
complaining,
and
these
current
9 and
general
invoices
10,
about
terms,
be
adjusted
By
sent
with
the
we
2018,
to
the
received
of
amount
reflect
our
orders
the
fees
of
the
Defendants'
from
emails
to
date
and
Court
other
the
suggesting
and
attorney
past
"the
under
is reasonable
what
circumstances."
28.
dissatisfaction
also
April
stated
that
to
move
unless
Defendants'
on
fees
were
paid
other
April
Friday,
and
20,
Catlow
Ms.
2018,
12,
relationship,
our
withdraw
April
the
informed
and
attorney,
relationship
2018,
unpaid
issues
were
of
payment
lack
citing
the
of
Defendants
fees.
resolved,
and
our
Ms.
Catlow
"we
plan
to
irreconcilable
differences."
until
Monday
those
three
April
resulted
point
where
before
2018,
not
taking
received
work
action
any
us
sent
attorney
an
us to
asking
We
withdrawal.
regarding
communication
any
being
Because
33.
the
granting
all
An
of
it is in the
Substantial
proceedings
the
best
work
agreed
wait
to
wait
from
Defendants
since
the
of
morning
fees
of the
to be
the
conduct
between
relationship
interests
remains
and
done
Defendants
to seek
Defendants
in this
Defendants'
of
action,
and
and
Mintz
other
our
other
attorney
Levin,
to the
representation.
firm
is unwilling
to do
paid.
this
motion
order
legal
unpaid
deterioration
I believe
without
34.
significant
in the
32.
of
have
The
have
stay
other
2018,
2018.
20,
an order
23,
We
31.
that
20,
days.
30.
April
Defendants'
On April
29.
action
of
Mintz
permitting
for
is in
a period
its
Levin
Mintz
of
early
stages,
to withdraw
Levin
30
to
days
Plaintiffs
as counsel
withdraw
following
9
7 of 9
suffer
would
should
written
for
no
from
prejudice
Defendants.
issue
decision
and
of
should
the
Court
contain
on
a
this
INDEX NO. 654159/2015
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RECEIVED NYSCEF: 04/23/2018
in
application,
substitute
order
counsel
Defendants
Weiss
permitted
and
cause"
of the
647
626,
N.Y.S.2d
in
pursued
for
65 A.D.3d
client
failed
where
1996)
(2d
Dep't
constituted
good
883
N.Y.S.2d
577,
timely
pay
legal
fees
was
were
(2d
counsel
and
with
and
Dep't
(3d
client
granted.
(attorney
legal
of
fees);
("good
2011)
the
causing
Erection
respect
to
disagreed
231
Corp.,
proper
"the
A.D.2d
course
to
v. Metropolitan
(withdrawal
2009)
2007)
Dep't
Misek-Falkoff
Dep't
been
have
differences"
Steel
withdrawal);
722
722,
904
903,
v. Rise
choosing.
in payment
"irreconcilable
(disagreements
for
own
(2d
for
opportunity
withdraw
237
to allow
counsel,
provide
in arrears
N.Y.S.2d
Winters
cause
to
237,
$3,000
718
there
962
counsel
N.Y.S.2d
814
813,
relationship);
576,
to
client
attorney-client
litigation"
Auth.,
the
A.D.2d
withdrawal
848
675,
to
of their
strategy
by
substitute
and
matter,
litigation
the
675,
where
279
Inc.,
the
applications
A.D.3d
as counsel
Trucking
sufficient
deterioration
46
to secure
opportunity
with
to pursue
circumstances,
v. Spitzer,
M P.C.
ample
themselves
counsel
similar
to withdraw
v.
Defendants
familiarize
substitute
In
e.g.,
Lade
to
and
35.
See,
to afford
Tr.
appropriate
with
respect
be
where
litigation
to
strategy).
36.
This
now,
however,
As
of
30,
2018,
as a result
37.
Plaintiffs
By
that
38.
this
firm
intends
the
of
emails
order
No prior
to
in
proceedings
the
withdrawal
sent
on
to show
application
an
make
the
of
for
Related
the
would
the
motion
Action
attorneys
April
Monday
cause
identical
23,
2018,
I notified
8 of 9
to the
in this
Related
stayed
defendants
sought
10
are
the
for
be presented
relief
in
by
Action
Court
in that
application
on
order
necessary.
until
April
action.
Defendants
Court
if
April
has
and
24,
been
counsel
2018.
made.
for
INDEX NO. 654159/2015
FILED: NEW YORK COUNTY CLERK 04/23/2018 04:52 PM NYSCEF DOC. NO. 47
RECEIVED NYSCEF: 04/23/2018
for
WHEREFORE, an
order
heard;
(ii)
action;
and
decision
Dated:
the
relieving
(iii)
of this
CPLR
to
pursuant
April
23,
New
York,
reasons
on
this
set forth
321(b)(2):
of
(i)
Mintz
proceedings
staying
Court
firm
the
staying
Levin
in
this
herein,
as
matter
the
I respectfully
proceedings
attorneys
for
request
for
a period
until
this
Defendants
of
30
that
in
days
the
following
application.
York
C
REV
11 77173666v.l
9 of 9
N.
Court
AINSWORTH
issue
can
application
2018
New
this
above-entitled
the
written
be