The following e-filed documents, listed by NYSCEF document number (Motion 015) 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235, 236, 237, 238, 239, 240, 241, 242, 243 were read on this motion to/for withdraw as counsel. DECISION ORDER ON MOTION Nonparty Gleason & Koatz, LLP (Gleason & Koatz), counsel for defendant Bodega Olegario Falcon Pineiro (defendant) moves, pursuant to CPLR 321 (b) (2), for an order to withdraw as counsel. (See Notice of Motion [NYSCEF Doc. No. 208]). Gleason & Koatz asserts that, by letter dated January 28, 2021, defendant “discharged [the] firm as its attorneys and requested that [the] firm discontinue its legal representation of Defendant.” (Qubain Aff., at 5-6 [NYSCEF Doc. No. 209]; see Def.’s January 28, 2021 Letter [Original, NYSCEF Doc. No. 210] [English Translation, NYSCEF Doc. No. 211]1). Plaintiff opposes the motion on the ground that the motion is “procedurally infirm because it was not brought by order to show cause instead of by notice of motion.” (P.’s Memo. In Opp., at 1 [NYSCEF Doc. No. 235]). To the extent that the court does not require Gleason & Koatz to move by order to show cause, plaintiff cross-moves for an order: (i) precluding defendant from raising the issue of improper filing of this motion should defendant seek to vacate a future default entered against it; (ii) directing service of this court’s order upon defendant with a notice that, should defendant fail to timely appoint new counsel, plaintiff will seek a default judgment against defendant; and (iii) amending the caption to reflect defendant’s true legal name. (Notice of Cross-Motion [NYSCEF Doc. No. 225]). CPLR 321 (b) (2) provides; “An attorney of record may withdraw or be changed 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.” Whenever “a given statute requires a motion to be brought on in such manner as the court may direct, or requires that the motion papers be served on such persons as the court may designate, or by such notice as the court may determine, it contemplates that the procedure of order to show cause will be used.” (Seigel & Connors, NY Prac §248 [6th ed 2018, Dec. 2020 Update]). The Appellate Division has held that a motion pursuant to CPLR 321 (b) (2) “requires the attorney of record to move, by order to show cause, on such notice as the court may direct, to be relieved.” (Matter of Cassini, 182 AD3d 13, 40 [2d Dept 2020]). In Cassini, two motions were brought pursuant to CPLR 321 (b) (2) by notice of motion, rather than order to show cause. (Id., at n 8.) The Appellate Division determined that, “[s]ince no party raised this procedural defect, and, in any event, the Surrogate’s Court granted the unopposed motions, [the court] likewise will take no cognizance of the defect.” (Id.). The court (Freed, J.), in another action, relied on Cassini when ruling on a motion made pursuant to CPLR 321 (b) (2) and found that the “firm’s failure to request this relief by order to show cause warrants denial of the motion.” (Doma Inc. v. 885 Park Ave. Corp: 2020 WL 3485531, *2 [Sup Ct, NY County 2020, J Freed]). Plaintiff argues that CPLR 321 (b) (2) allows the court to determine who should be notified “by requiring the motion to be” served by “order to show cause.” (Pl.’s Memo. In Opp., at 3). Defendant argues that “an Order to Show Cause is not mandated by CPLR, and moving the Court by way of a notice of motion does not render the request to the Court defective….” (Qubain Reply Aff., 16 [NYSCEF Doc. No. 244]). The court holds that a motion made pursuant to CPLR 321 (b) (2) must be brought by order to show cause. This defect may be excusable where the issue is not raised, as in Cassini. On this motion, however, where plaintiff has opposed the motion on the ground that it was not brought by order to show cause, the court finds that the motion was improperly made. The motion will accordingly be denied without prejudice to defendant bringing the motion by order to show cause. The branch of plaintiff’s cross-motion brought in the event the court excused defendant’s failure to move by order to show cause will also be denied as moot. The remaining branch of plaintiff’s cross-motion is to amend the caption to reflect defendant’s true legal name. CPLR 3025 (b) states, in relevant part, that a party “may amend his or her pleading…at any time by leave of court or by stipulation of all parties…. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” “When there is extended delay in moving to amend, an affidavit of reasonable excuse for the delay in making the motion and an affidavit of merit should be submitted in support of the motion. In the absence of prejudice, mere delay is insufficient to defeat the amendment. Prejudice requires some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” (Cherebin v. Empress Ambulance Serv., Inc., 43 AD3d 364, 365 [1st Dept 2007] [internal quotation marks and citations omitted]). Plaintiff argues that there is “no question that Defendant Bodegas y Vinedos Don Olegario S.L. is the Defendant’s correct legal name.” (Zara Aff., 36 [NYSCEF Doc. No. 226]). In support of its argument, plaintiff submits an affidavit from defendant’s former export manager, dated January 25, 2010, in which she identifies defendant as “Bodegas y Vinedos Don Olegario S.L. (incorrectly identified by plaintiff as Bodega Olegario Falcon Pineiro)….” (Mosteiro Aff., 1 [Exh. 4 to Zara Aff., NYSCEF Doc. No. 230]). Plaintiff argues that this branch of the motion is “a long overdue name modification to reflect Defendant’s proper corporate name….” (Pl.’s March 12, 2021 Letter [NYSCEF Doc. No. 240]). Defendant argues that this branch of the motion must be denied because plaintiff “fails to provide the court with a copy of its proposed amended caption.” (Qubain Reply Aff., 44). Defendant further argues that this branch of the motion should be denied because plaintiff offers no “reasonable excuse or an affidavit of merit” to explain the delay in bringing the motion. (Id., 49). On this record, the court holds that the branch of plaintiff’s cross-motion to amend the caption must be denied. The CPLR requires that such a motion be accompanied by a copy of the proposed pleading, which plaintiff has failed to provide (see CPLR 3025 [b]). More importantly, plaintiff has failed to provide any explanation for its delay in bringing this motion (Cherebin v. Empress Ambulance Serv., Inc., 43 AD3d at 365). By its own admission, such a motion to amend is long overdue. Plaintiff’s own evidence shows that plaintiff had knowledge of the alleged misnomer eleven years prior to moving to amend. Absent an affidavit of reasonable excuse, the court must deny this branch of the cross-motion. This denial will be without prejudice to bringing a motion on proper papers. For the foregoing reasons, it is hereby ORDERED that the motion of Gleason & Koatz, counsel for defendant, to withdraw as counsel is denied without prejudice; and it is further ORDERED that plaintiff’s cross-motion is denied without prejudice. This constitutes the decision and order of the court. Dated: April 15, 2021
