Case Number: KC068437??? Hearing Date: December 19, 2016??? Dept: J
Re: Comptree, Inc. v. Choxi.Com, Inc. (KC068437)
MOTION TO BE RELIEVED AS COUNSEL
Moving Party: Young, Minney & Corr, LLP, counsel for Defendant Choxi.Com, Inc.
Respondent: No opposition filed
POS: Moving OK
On/about 5/15, plaintiff and Choxi.com, Inc. entered into a written agreement, wherein plaintiff agreed to supply product to Choxi.com, Inc. in exchange for payment. Plaintiff alleges that it has not been paid for product supplied. The complaint, filed 5/11/16, asserts causes of action for:
1. Breach of Contract
2. Common Counts
On 11/16/16, Choxi.com, Inc. filed its ?Notice of Bankruptcy and Stay of Proceedings.? A bench trial is currently set for 5/15/17.
William J. Trinkle and Rachael B. Tillman of Young, Minney & Corr, LLP now seek to be relieved as counsel of record for Defendant Choxi.com, Inc.
?A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel–Civil (form MC-051).? Rules of Court Rule 3.1362(a). ?Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel.? Rules of Court Rule 3.1362(b). ?The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney’s Motion to Be Relieved as Counsel–Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1).? Rules of Court Rule 3.1362(c).
?The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service or mail. If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (1) The service address is the current residence or business address of the client; or (2) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. As used in this rule, ?current? means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client’s last known address and was not returned is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies.? Rules of Court Rule 3.1362(d).
?The proposed order relieving counsel must be prepared on the Order Granting Attorney’s Motion to Be Relieved as Counsel–Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.? Rules of Court Rule 3.1362(e).
Tillman represents that ?1. [a]n unresolved conflict under the rules of professional conduct has arisen requiring Young, Minney & Corr, LLP?s (?YMC?) withdrawal as Choxi.com, Inc.?s (?Choxi?) counsel in this matter. Choxi has indicated it has breached its agreement with YMC and will continue to do so, putting YMC in a continued conflict with Choxi. Choxi has not been willing to sign a consent to withdrawal and substitution of new counsel pursuant to Code of Civil Procedure section 284(1). 2. YMC is aware that Choxi has a general counsel and at least one other licensed attorney affiliated with Choxi who can, via pro hac vice, represent Choxi in this matter.?
Tillman further represents that she served Choxi by mail at its last known address with copies of the motion papers served with her declaration, and that she has confirmed within the past 30 days that the address is current, via telephone, conversation, and by reviewing Choxi?s Entity Information with the NYS Department of State Division of Corporations, which confirmed the address as of 11/9/16.
Tillman has complied with the requirements of Rules of Court Rule 3.1362 enumerated above. This motion, then, is granted effective upon the filing of the proof of service showing service of the signed order upon the client.