Bank of Am., N.A. v. Glenn

• Jurisdiction: New York,United States
• Parties: BANK OF AMERICA, N.A., Plaintiff, v. Lawrence GLENN, et al., Defendants.
• Citation: 81 Misc.3d 422,199 N.Y.S.3d 904
• Decision Date: 06 October 2023
• Court: New York Supreme Court
• Docket Number: Index No. 062195-2014

81 Misc.3d 422

199 N.Y.S.3d 904

BANK OF AMERICA, N.A., Plaintiff,

v.Lawrence GLENN, et al., Defendants.

Index No. 062195-2014

Supreme Court, Suffolk County, New York.

Decided on October 6, 2023

Ronald D. Weiss, P.C., Melville, New York, for Defendant.

Aletha V. Fields, J.

The question squarely before this Court is: When a party's lawyer who has filed a notice of appearance in pending litigation and the party both execute a consent to change attorney purporting to change the party's status from represented to self-represented, is the consent to change form effective to cause such change to occur immediately? The answer is no.

The context in which this Court faces the question is that it received a telephone call on Friday, September 29, 2023 from Lawrence Glenn, a defendant in this mortgage foreclosure action who sought an adjournment of plaintiff's pending motion, now returnable on October 6, 2023. This Court's chamber's staff added such defendant's counsel to that telephone call. Counsel and client agreed to meet on Monday, October 2, 2023, so this Court awaited further action from counsel. On Monday, October 2, 2023, defendant again called chambers seeking an adjournment. Defendant advised this Court's chamber's staff that a filing had been made to authorize defendant to make this request.

Both these calls addressed only the scheduling of the motion, so they are permitted contacts. Obviously, this Court would not have granted an adjournment without outreach to plaintiff.

Today, October 6, 2023, plaintiff's motion is scheduled to be submitted. No opposition to the motion was filed. All this Court finds in NYSCEF is a document captioned "Consent to Change Attorneys" (Dkt. 91). That document sets forth

IT IS HEREBY CONSENTED THAT, Ronald D. Weiss, P.C., having an office at 774 Walt Whitman Road, Suite 203, Melville, New York 11747, be withdrawn as attorneys of record for the undersigned party, Lawrence Glenn in the above-entitled action. In place and stead of Ronald D. Weiss, P.C., Defendant Lawrence Glenn will be proceeding pro se.

The document purports to have the signature of attorney Ronald D. Weiss on behalf of Ronald D. Weiss, P.C. and of the client, Lawrence Glenn. "If a party appears by attorney[,] such party may not act in person except by consent of the court" ( CPLR 321 [a] ). Thus, if the defendant/client is, in fact, now self-represented, then defendant/client had the right to seek the adjournment without counsel. However, if the defendant/client is not now self-represented, the defendant/client did not have such right, and counsel's failure to oppose plaintiff's motion becomes acutely problematic. This Court is not consenting to the switch from represented to self-represented by a consent form ( CPLR 321 [b] [1] ) when the litigation puts such individual party's housing at risk.¹

I

The law of a change of counsel, including to self-represented, combines statutory law, judicial discretion, and ethical rules. Three pathways for the change or withdrawal of an attorney are set forth in CPLR 321 (b) and (c) ( Matter of Cassini , 182 A.D.3d 13, 120 N.Y.S.3d 103 [2d Dept. 2020] ). We begin any statutory interpretation question with the statute's plain language ( Matter of Avella v. City of New York , 29 N.Y.3d 425, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017] ). "[W]e approach the statute's provisions sequentially and give the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions. It is axiomatic that such an approach is preferred, especially when an opposite interpretation would lead to an absurd result that would frustrate the statutory purpose" ( Long v. Adirondack Park Agency , 76 N.Y.2d 416, 420, 559 N.Y.S.2d 941, 559 N.E.2d 635 [1990] [internal quotation marks and citations omitted] quoted and cited by Bank of Am. v. Kessler , 39 N.Y.3d 317, 186 N.Y.S.3d 85, 206 N.E.3d 1228 [2023] )

The first of the three pathways that Cassini identifies is CPLR 321 (b) (1), which sets forth:

Unless the party is a person specified in section 1201, an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the action or, if a party appears without an attorney, to the party.

The plain language of this paragraph permits, without judicial intervention, "an attorney of record [to] be changed." The plain meaning of change is "to make different in some particular" or "to replace with another" (Merriam-Webster.com/dictionary/change [last accessed October 3, 2023]). The attorney of record is what is being changed, and defendant/client and the lawyers appear to believe that a self-represented litigant is an "attorney of record" capable of becoming an attorney of record by filing a consent form.

Several provisions of law defeat this belief. Continuing sequentially, the second pathway that Cassini identifies is CPLR 321 (b) (2), which sets forth:

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

This paragraph has two operative verbs, unlike paragraph one. Here, the two verbs are "withdraw" and "changed." To withdraw means "to remove oneself from participation" (Merriam-Webster.com/dictionary/withdraw [last accessed October 3, 2023]) or in specific reference to a lawyer "to terminate one's representation of a client before a matter is complete" (Black's Law Dictionary, [11th Ed., 2019]). Thus, CPLR 321 (b) (2) provides the process for either changing the attorney of record or having the attorney of record withdraw, in either case, by motion practice. In CPLR 321 (b) (1), only the verb "changed" appears. "The maxim expressio unius est exclusio alterius is applied in the construction of the statutes, so that where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" (McKinney's Cons Laws of NY, Book 1, Statutes § 240, cited by, inter alia , Patrolmen's Benev. Ass'n of City of New York v. City of New York , 41 N.Y.2d 205, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ). Thus, the omission of withdrawal from paragraph one contrasted with its inclusion in paragraph two creates an irrefutable inference that withdrawal cannot be accomplished by a consent form ( CPLR 321 [b] [1] ’s method), and may, instead, be accomplished only by motion practice ( CPLR 321 [b] [2] ’s method).

CPLR 321 (a) allows a party, with certain exceptions not relevant here, to appear by attorney or in person. Thus, reading all of CPLR 321 as an integrated whole, a change in the attorney of record is when a party who is appearing by an attorney changes (switches) to a different attorney of record, but not to an in person appearance. When the change is from represented to self-represented, the attorney of record is not "changed," but, more precisely, the attorney of record has withdrawn. The office of attorney of record is vacant because the attorney withdrew, leaving the party as a litigant appearing in person ( CPLR 321 [a] ). Appearing by attorney and appearing in person as used in CPLR 321 (a) are different concepts expressed in different words. So too, change and withdrawal are different concepts expressed in different words. Thus, they must be treated differently, so each word has independent meaning ( Scott v. Massachusetts Mut. Life Ins. Co. , 86 N.Y.2d 429, 633 N.Y.S.2d 754, 657 N.E.2d 769 [1995] ).

Allowing an attorney to withdraw via a consent to change attorney form in civil cases where the client has a constitutional or statutory right to counsel utterly defeats that right. While one answer might be that such withdrawal by consent form is impermissible in cases where a court must conduct a "searching inquiry" (e.g., Matter of Mercado v. Arzola , 212 A.D.3d 815, 181 N.Y.S.3d 656 [2d Dept. 2023] ; see, Laura K. Abel, Toward a Right to Counsel in Civil Cases in New York State: A Report of the New York State Bar Association , 25 Touro L Rev issue 1, art 11 [2013])) but is permissible in all other cases, including mortgage foreclosure actions, grafts tentacles onto the statute's plain language. Easy to predict is that those judicially-grafted tentacles will take hold of courts, litigants, and lawyers as the argument shifts to whether a case should, perhaps as a matter of the common law, qualify for the no withdrawal by consent form rule. This sort of two-tiered statutory interpretation fails to "produce equal results and avoid unjust discrimination" (McKinney's Cons Laws of NY, Book 1, Statutes § 147 ). Equal treatment of all cases answers arguments, as applied to mortgage foreclosure cases, about the hybrid nature of the right to counsel in mortgage foreclosure actions. "At the initial conference pursuant to this section, any defendant currently appearing pro se, shall be deemed to have made a motion to proceed as a poor person under section eleven hundred one of" the CPLR" ( CPLR 3408 [b] ; see generally , Carrington Mtge. Servs., LLC v. Fiore , 198 A.D.3d 1106, 156 N.Y.S.3d 453 [3d Dept. 2021] ). In conjunction with that determination under CPLR 1101, CPLR 3408 (b) also authorizes the supreme court to appoint counsel. CPLR 3408 (b) sets forth, "If the court appoints defendant counsel pursuant to subdivision (a) of section eleven hundred two ... it shall adjourn the conference" ( CPLR 3408 [b] ). Therefore, Fiore indicates that leave under CPLR 1101 either a fortiori requires or discretionarily permits the appointment of counsel under CPLR 1102....