Preview
FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM INDEX NO. 128590-2021
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021
202102190298 Index # : 128590-2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONTARIO
ORIGIN CLEAR INC DBA ORIGINCLEAR /
PROGRESSIVE WATER TREATMENT INC DBA ORIGIN
CLEAR / PROGRESSIVE WATER TREATMENT AND Index No. 128590-2021
TENER RIGGS ECKELBERRY,
Affirmation in Support
Plaintiffs, of Motion to Withdraw
-against- as Counsel
IKAHN CAPITAL LLC,
Defendants.
I, Steven W. Wells, hereby affirm the following under the penalties of perjury pursuant to
CPLR § 2106:
1. I am an attorney licensed to practice in the State of New York and am a Partner in
the firm of Wells & Mendelberg PLLC, attorneys of record for Defendant in the above captioned
action. As such, I am authorized to make this affirmation and do so upon my own personal
knowledge except where a statement is made upon information and belief and, as to those
statements, I believe them to be true but do not have sufficient evidence to make the statements
with certainty at this point.
2. This action was commenced by the filing of a Summons and Complaint on
January 12, 2021. NYSCEF Doc. No. 1.
3. On January 12, 2021, Plaintiffs made an application for a preliminary injunction
(the “PI Motion”) by way of an Order to Show Cause (the “Plaintiffs’ OSC”) which contained a
temporary restraining order (the “TRO”) enjoining, among other things, any collection activity
with respect to Defendant’s Judgment by Confession against the Plaintiffs pending the outcome
of the PI Motion. NYSCEF Doc. Nos. 7-11.
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4. I submitted a letter brief (NYSCEF Doc. Nos. 16-18) on behalf of Defendant in
opposition to Plaintiffs’ application for a TRO and the Court conducted a virtual hearing on
Plaintiffs’ application on January 15, 2021, at which time the Court entertained argument by the
parties’ respective counsel.
5. Justice Odorisi signed Plaintiffs’ OSC and granted the TRO contained therein on
January 15, 2021. NYSCEF Doc. No. 18. The Court set deadlines for submitting opposition and
reply papers to the PI Motion.
6. On February 11, 2021, the Court entered a Stipulated Order adjourning the return
date on the PI Motion and extending the deadlines for briefing. NYSCEF Doc. No. 21.
7. Due to various disagreements including, but not limited to, litigation strategy and
Defendant’s unwillingness to pay for my firm’s legal services, I requested Defendant’s consent
to withdraw as counsel, which consent was provided on January 12, 2021. I advised Defendant’s
principal, Jeff Kahn, that, because Defendant is a corporate entity, it would have to obtain
substitute counsel.
8. I promptly notified Plaintiffs’ counsel that Defendant had consented to my firm
withdrawing as counsel of record and the parties agreed to a further adjournment on the hearing
on the PI Motion and extension of the briefing deadlines, which agreement was memorialized in
a Stipulation that was entered as an Order by the Court on February 17, 2021 (the “Second
Stipulation on Deadlines”). NYSCEF Doc. No. 23.
9. Pursuant to the Second Stipulation on Deadlines, Defendant’s opposition to the PI
Motion, responding to the Complaint and, if applicable, filing any cross-motions were extended
until February 24, 2021.
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10. On February 15, 2021, I provided Mr. Kahn with a copy of the Second Stipulation
on Deadlines (NYSCEF Doc. No. 22) that had been signed by counsel for the parties, uploaded
on the NYSCEF system, but not yet entered as an order, via electronic mail.
11. On February 17, 2021, I provided, via electronic mai, Mr. Kahn with a copy of the
Second Stipulation on Deadlines that had been entered as an Order. NYSCEF Doc. No. 23.
12. I gave Defendant until today to provide substitute counsel but was advised last
evening that he would not be retaining counsel by today.
13. Based on the foregoing, Wells & Mendelberg PLLC seek the Court’s permission
pursuant to CPLR § 321(b)(2) to withdraw as counsel for Defendant.
14. There will not be substantial prejudice for the Plaintiffs because we are at the very
early stages of the litigation and the TRO will remain in place pending further order of the Court.
15. Withdrawal of counsel is appropriate where the law firm demonstrates there is
good and sufficient cause, and upon reasonable notice to the client. Williams v. Lewis, 1999
N.Y. App. Div. LEXIS 1738 (4th Dept. 1999). Good cause is in the sound discretion of the court,
but has been found to exist where (1) the client fails to maintain in contact with counsel, (2) the
attorney/client relationship deteriorates, or (3) the client fails or refuses to pay the law firm’s
legal fees. See Doe v. City of New York 2014 N.Y. Misc. LEXIS 1854 (Sup. Ct. N.Y. Cty. 2014).
Each of these circumstances are instances where a client’s conduct renders it unreasonably
difficult for the law firm to carry out its professional duties effectively, making withdrawal as
counsel appropriate. Countryman v. Watertown Hous. Auth. 13 Misc.3d 632, 633 (App. Term,
1st Dept. 2006).
16. Two out of the three elements (and at times all three) are met in this instance
because the relationship has deteriorated to the point where our communications are not
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productive and substantially interfere with my ability to effectively represent Defendant. And,
Mr. Kahn has refused to pay my firm’s legal fees beyond a small initial retainer, which did not
even cover the opposition to the TRO.
17. I have been in contact with Plaintiffs’ counsel throughout this week and they have
been aware of my intention to wait until today to see if Mr. Kahn retains new counsel for the
Defendant and, in the event that he does not (which he has not), to file a motion to withdraw as
counsel.
18. At 9:36 a.m. this morning, I provided Plaintiffs’ counsel with notification that I
was making this application and sent counsel a draft of the form of the Proposed Order to Show
Cause that I intend to file today. I also provided them with the basis of my application.
Accordingly, if the stay on the deadlines for opposing the PI Motion and responding to the
Complaint pending further order of the Court, which is currently included in my Proposed Order
to Show Cause constitutes interim relief obligating me to provide notice pursuant to Uniform
Rule 202.7(f), I have fulfilled my notice requirement. Plaintiffs’ counsel were also advised to
provide me with any comments or revisions to the language of the Proposed Order to Show
Cause and/or indicate if they had any issues with its content by 3:00 p.m. As of 4:12 p.m., I have
not received any objection to the form or content of the Proposed Order to Show Cause
WHEREFORE, I hereby request that the Court grant the following relief:
A. An Order granting Wells & Mendelberg PLLC permission to withdraw as counsel for
Defendant;
B. Stay these proceedings including, without limitation, Defendant’s time to submit
opposition to the PI Motion and its deadline for responding to the Complaint, for a
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period of thirty (30) from the date an order is entered authorizing Wells &
Mendelberg PLLC to withdraw as counsel; and
C. For such other and further relief as the Court deems just and proper.
Affirmed this 19th day of February 2021.
__/s/ Steven W. Wells___________
Steven W. Wells
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Preview
FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM INDEX NO. 128590-2021 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021 202102190298 Index # : 128590-2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONTARIO ORIGIN CLEAR INC DBA ORIGINCLEAR / PROGRESSIVE WATER TREATMENT INC DBA ORIGIN CLEAR / PROGRESSIVE WATER TREATMENT AND Index No. 128590-2021 TENER RIGGS ECKELBERRY, Affirmation in Support Plaintiffs, of Motion to Withdraw -against- as Counsel IKAHN CAPITAL LLC, Defendants. I, Steven W. Wells, hereby affirm the following under the penalties of perjury pursuant to CPLR § 2106: 1. I am an attorney licensed to practice in the State of New York and am a Partner in the firm of Wells & Mendelberg PLLC, attorneys of record for Defendant in the above captioned action. As such, I am authorized to make this affirmation and do so upon my own personal knowledge except where a statement is made upon information and belief and, as to those statements, I believe them to be true but do not have sufficient evidence to make the statements with certainty at this point. 2. This action was commenced by the filing of a Summons and Complaint on January 12, 2021. NYSCEF Doc. No. 1. 3. On January 12, 2021, Plaintiffs made an application for a preliminary injunction (the “PI Motion”) by way of an Order to Show Cause (the “Plaintiffs’ OSC”) which contained a temporary restraining order (the “TRO”) enjoining, among other things, any collection activity with respect to Defendant’s Judgment by Confession against the Plaintiffs pending the outcome of the PI Motion. NYSCEF Doc. Nos. 7-11. 1 1 of 5 202102190298 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021 4. I submitted a letter brief (NYSCEF Doc. Nos. 16-18) on behalf of Defendant in opposition to Plaintiffs’ application for a TRO and the Court conducted a virtual hearing on Plaintiffs’ application on January 15, 2021, at which time the Court entertained argument by the parties’ respective counsel. 5. Justice Odorisi signed Plaintiffs’ OSC and granted the TRO contained therein on January 15, 2021. NYSCEF Doc. No. 18. The Court set deadlines for submitting opposition and reply papers to the PI Motion. 6. On February 11, 2021, the Court entered a Stipulated Order adjourning the return date on the PI Motion and extending the deadlines for briefing. NYSCEF Doc. No. 21. 7. Due to various disagreements including, but not limited to, litigation strategy and Defendant’s unwillingness to pay for my firm’s legal services, I requested Defendant’s consent to withdraw as counsel, which consent was provided on January 12, 2021. I advised Defendant’s principal, Jeff Kahn, that, because Defendant is a corporate entity, it would have to obtain substitute counsel. 8. I promptly notified Plaintiffs’ counsel that Defendant had consented to my firm withdrawing as counsel of record and the parties agreed to a further adjournment on the hearing on the PI Motion and extension of the briefing deadlines, which agreement was memorialized in a Stipulation that was entered as an Order by the Court on February 17, 2021 (the “Second Stipulation on Deadlines”). NYSCEF Doc. No. 23. 9. Pursuant to the Second Stipulation on Deadlines, Defendant’s opposition to the PI Motion, responding to the Complaint and, if applicable, filing any cross-motions were extended until February 24, 2021. 2 2 of 5 202102190298 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021 10. On February 15, 2021, I provided Mr. Kahn with a copy of the Second Stipulation on Deadlines (NYSCEF Doc. No. 22) that had been signed by counsel for the parties, uploaded on the NYSCEF system, but not yet entered as an order, via electronic mail. 11. On February 17, 2021, I provided, via electronic mai, Mr. Kahn with a copy of the Second Stipulation on Deadlines that had been entered as an Order. NYSCEF Doc. No. 23. 12. I gave Defendant until today to provide substitute counsel but was advised last evening that he would not be retaining counsel by today. 13. Based on the foregoing, Wells & Mendelberg PLLC seek the Court’s permission pursuant to CPLR § 321(b)(2) to withdraw as counsel for Defendant. 14. There will not be substantial prejudice for the Plaintiffs because we are at the very early stages of the litigation and the TRO will remain in place pending further order of the Court. 15. Withdrawal of counsel is appropriate where the law firm demonstrates there is good and sufficient cause, and upon reasonable notice to the client. Williams v. Lewis, 1999 N.Y. App. Div. LEXIS 1738 (4th Dept. 1999). Good cause is in the sound discretion of the court, but has been found to exist where (1) the client fails to maintain in contact with counsel, (2) the attorney/client relationship deteriorates, or (3) the client fails or refuses to pay the law firm’s legal fees. See Doe v. City of New York 2014 N.Y. Misc. LEXIS 1854 (Sup. Ct. N.Y. Cty. 2014). Each of these circumstances are instances where a client’s conduct renders it unreasonably difficult for the law firm to carry out its professional duties effectively, making withdrawal as counsel appropriate. Countryman v. Watertown Hous. Auth. 13 Misc.3d 632, 633 (App. Term, 1st Dept. 2006). 16. Two out of the three elements (and at times all three) are met in this instance because the relationship has deteriorated to the point where our communications are not 3 3 of 5 202102190298 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021 productive and substantially interfere with my ability to effectively represent Defendant. And, Mr. Kahn has refused to pay my firm’s legal fees beyond a small initial retainer, which did not even cover the opposition to the TRO. 17. I have been in contact with Plaintiffs’ counsel throughout this week and they have been aware of my intention to wait until today to see if Mr. Kahn retains new counsel for the Defendant and, in the event that he does not (which he has not), to file a motion to withdraw as counsel. 18. At 9:36 a.m. this morning, I provided Plaintiffs’ counsel with notification that I was making this application and sent counsel a draft of the form of the Proposed Order to Show Cause that I intend to file today. I also provided them with the basis of my application. Accordingly, if the stay on the deadlines for opposing the PI Motion and responding to the Complaint pending further order of the Court, which is currently included in my Proposed Order to Show Cause constitutes interim relief obligating me to provide notice pursuant to Uniform Rule 202.7(f), I have fulfilled my notice requirement. Plaintiffs’ counsel were also advised to provide me with any comments or revisions to the language of the Proposed Order to Show Cause and/or indicate if they had any issues with its content by 3:00 p.m. As of 4:12 p.m., I have not received any objection to the form or content of the Proposed Order to Show Cause WHEREFORE, I hereby request that the Court grant the following relief: A. An Order granting Wells & Mendelberg PLLC permission to withdraw as counsel for Defendant; B. Stay these proceedings including, without limitation, Defendant’s time to submit opposition to the PI Motion and its deadline for responding to the Complaint, for a 4 4 of 5 202102190298 IndexNO. INDEX #: 128590-2021 128590-2021 FILED: ONTARIO COUNTY CLERK 02/19/2021 04:24 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 02/19/2021 period of thirty (30) from the date an order is entered authorizing Wells & Mendelberg PLLC to withdraw as counsel; and C. For such other and further relief as the Court deems just and proper. Affirmed this 19th day of February 2021. __/s/ Steven W. Wells___________ Steven W. Wells 5 5 of 5