Preview
FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021
NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
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NEIL B. RICE,
Plaintiff,
-against- AFFIRMATION IN
SUPPORT OF
LEE R. EINSIDLER, ORDER TO SHOW
As Administrator of the Estate of CAUSE TO BE
Aaron Michael Einsidler RELIEVED AS COUNSEL
Defendant.
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STEVEN M. BRUNNLEHRMAN, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under the penalties of perjury and
upon information and belief pursuant to Civil Practice Law and Rules (“CPLR”) § 2106:
1. I am Of Counsel to Rosman Legal, P.C., attorneys for the Plaintiff herein, and am
therefore familiar with the facts of the above-captioned proceeding upon personal
knowledge, upon information and belief, and upon reviewing the files maintained at the
offices of Rosman Legal (hereinafter “this Firm”).
2. This affirmation is respectfully submitted in support of the within order to show
cause (OTSC) seeking to be relieved as counsel for Plaintiff NEIL B. RICE.
3. “Pursuant to CPLR 321 (b) (2), counsel may withdraw from representing a client
with the permission of the Court. In order to withdraw, counsel must show reasonable
notice to the client and good and sufficient cause for the withdrawal (Matter of Dunn
(Brackett), 205 NY 398 [1912]; J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929
[4th Dept 1988]). Good cause for withdrawal includes irreconcilable differences between
counsel and the client regarding the proper course to be pursued in the litigation (
Sansiviero v Sanders, 117 AD2d 794 [2d Dept 1986]). McGarvey v. State, # 2018-053-
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542 (N.Y. Ct. Cl. Aug. 9, 2018). See also Am. Express Nat'l Bank v. Toro Kitchen, Inc.,
2022 NY Slip Op 33512(U) (Sup. Ct. N.Y. Co. 10/14/2022) (deteriorated attorney-client
relationship was good and sufficient cause and reasonable notice to client was provided);
Rivardeneria v. New York City Health and Hospitals Corporation, 306 A.D.2d 394, 395,
760 N.Y.S.2d 877 (2d Dep’t 2003) (attorney may terminate attorney client relationship at
any time for good and sufficient cause and upon reasonable notice).
4. Professional considerations require that this Firm terminate its representation of
Plaintiff.
5. Plaintiff’s Complaint dated July 29, 2021 (NYSCEF Doc. No. 1), Plaintiff’s
Affidavit dated April 29, 2022 (NYSCEF Doc. No. 41), and Plaintiff’s Affidavit dated
October 12, 2022 (NYSCEF Doc. 77), stated Plaintiff’s belief that photograph(s) and text
messages would be found on Aaron Einsidler’s iPhone that would corroborate Plaintiff’s
claims of being physically and sexually assaulted by, and receiving numerous phone calls
and texts from, Aaron M. Einsidler, Defendant’s son now deceased (hereinafter
“Deceased.”).
6. This Court ordered that Apple provide Defendant with access to the Deceased’s
iPhone and the iPhone Cloud for the purposes of providing text messages and a photograph
allegedly taken during Plaintiff’s claimed assault by the Deceased and the Deceased’s wife.
7. The medical examiner’s office provided a photograph of a tattoo on the Deceased’s
private area consistent with Plaintiff’s identification of that tattoo during the alleged
assault, as stated in Plaintiff’s Affidavit of April 29, 2022 (NYSCEF Doc. No. 41).
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8. On May 12, 2023, Defendant’s counsel informed this Firm, by email with letter
attached, that Defendant obtained access to Decedent’s iPhone but that no photo of the
alleged assault existed as Plaintiff had anticipated and no relevant text messages existed,
according to Defendant’s counsel, that would support Plaintiff’s claims.
9. It is important to note that Defendant’s counsel refuses to give us any subpoenaed
information to establish his allegations contained in his May 12, 2023 letter in regard to
evidence found on the iPhone or in the iCloud.
10. Please see Exhibit A for Defendant’s counsel’s email and letter.
11. In the aforementioned email and letter, Defendant’s counsel suggested that this
Firm should discuss the contents of the letter with Plaintiff.
12. The letter also reproduced alleged text message(s) that Defendant’s counsel
claimed were recently sent by Plaintiff to Defendant, the contents of said alleged text
message, if truly sent by Plaintiff, seemingly prejudiced Plaintiff’s entire cause of action
against Defendant:
“I am not autistic. I have problems that I deal with everyday of my
life. I am in Bedford because I took care of an elderly lady and her
son and She left me almost a million dollars. I invested that money
in real estate I have been alone my whole life. I was Your son’s friend
and I looked out for him. He was doing really well and staying away
from bad stuff. I couldn’t help him and I can’t sleep anymore. You
want to hurt me that’s ok. I know You tried to save him. He told me
my Dad is buying me. House near him bc he thinks something is
going to happen to me. Then You wouldnt go to his wedding at the
house because he said You were fighting. I was there for all of it. I
helped him so much he called me Uncle. I won’t bother You again
but I never lied. I did speak with You at the gas station. I was worried
about him. You had me all wrong from the beginning. I got Your son
away from bad people. Ok I am going to see my Mom. Once again
sorry to bother You. You want to talk I am willing. Take care . . . .”
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13. After discussing the contents of the alleged text message with our client, Plaintiff
NEIL B. RICE, along with the contents of the entire letter sent by Defendant’s counsel,
this Firm notified Plaintiff that this Firm could no longer represent Plaintiff and that we
would be asking the Court to relieve us as counsel because of the irreconcilable differences
between counsel and Plaintiff regarding the proper course to be pursued in the litigation.
14. On May 15, 2023, we communicated with Defendant’s counsel that we would be
moving this Court to relieve us as counsel and to stay proceedings for 30 days for Mr. Rice
to seek new representation.
15. Please see email exchange at Exhibit B.
16. Pursuant to both the New York Lawyer's Code of Professional Responsibility and
the New York Rules of Professional Conduct, a lawyer may withdraw from representing a
client if withdrawal can be accomplished without material adverse effect on the interests
of the client, or if . . . [the client’s] conduct renders it unreasonably difficult for the lawyer
to carry out employment effectively.”
17. The contents of the alleged text message are in direct opposition to Plaintiff’s theory
of the case; Plaintiff’s counsel had no knowledge or information regarding the alleged text
message prior to defendant-counsel’s letter dated May 12, 2023.
18. In addition, Plaintiff’s refusal to abide by this Firm’s counsel has made it
impossible for this Firm to provide effective counsel in this proceeding.
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19. Plaintiff intends to continue with this cause of action and has instructed us to ask
this Court for the opportunity for him to obtain new counsel.
WHEREFORE, it is respectfully requested that this Court grant Rosman Legal, P.C. leave to
withdraw as counsel to Plaintiff and stay all proceedings for 30 days to allow Plaintiff to seek new
counsel, along with such other and further relief that this Court deems just and proper.
Dated: Irvington, New York
May 31, 2023
ROSMAN LEGAL, P.C.
Attorneys for Plaintiff
______________________________
By: Steven M. Brunnlehrman, Esq.
Of Counsel
Rosman Legal, P.C.
10 Cayuga Lane
Irvington, New York 10533
(914) 339-9870
To: YANKWITT LLP
Attorneys for Defendant
140 Grand Street, Suite 705
White Plains, NY 10601
(914) 686-1500
5 of 5
Preview
FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER --------------------------------------------------------------------X Index # 61665/2021 NEIL B. RICE, Plaintiff, -against- AFFIRMATION IN SUPPORT OF LEE R. EINSIDLER, ORDER TO SHOW As Administrator of the Estate of CAUSE TO BE Aaron Michael Einsidler RELIEVED AS COUNSEL Defendant. --------------------------------------------------------------------X STEVEN M. BRUNNLEHRMAN, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury and upon information and belief pursuant to Civil Practice Law and Rules (“CPLR”) § 2106: 1. I am Of Counsel to Rosman Legal, P.C., attorneys for the Plaintiff herein, and am therefore familiar with the facts of the above-captioned proceeding upon personal knowledge, upon information and belief, and upon reviewing the files maintained at the offices of Rosman Legal (hereinafter “this Firm”). 2. This affirmation is respectfully submitted in support of the within order to show cause (OTSC) seeking to be relieved as counsel for Plaintiff NEIL B. RICE. 3. “Pursuant to CPLR 321 (b) (2), counsel may withdraw from representing a client with the permission of the Court. In order to withdraw, counsel must show reasonable notice to the client and good and sufficient cause for the withdrawal (Matter of Dunn (Brackett), 205 NY 398 [1912]; J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988]). Good cause for withdrawal includes irreconcilable differences between counsel and the client regarding the proper course to be pursued in the litigation ( Sansiviero v Sanders, 117 AD2d 794 [2d Dept 1986]). McGarvey v. State, # 2018-053- 1 of 5 FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023 542 (N.Y. Ct. Cl. Aug. 9, 2018). See also Am. Express Nat'l Bank v. Toro Kitchen, Inc., 2022 NY Slip Op 33512(U) (Sup. Ct. N.Y. Co. 10/14/2022) (deteriorated attorney-client relationship was good and sufficient cause and reasonable notice to client was provided); Rivardeneria v. New York City Health and Hospitals Corporation, 306 A.D.2d 394, 395, 760 N.Y.S.2d 877 (2d Dep’t 2003) (attorney may terminate attorney client relationship at any time for good and sufficient cause and upon reasonable notice). 4. Professional considerations require that this Firm terminate its representation of Plaintiff. 5. Plaintiff’s Complaint dated July 29, 2021 (NYSCEF Doc. No. 1), Plaintiff’s Affidavit dated April 29, 2022 (NYSCEF Doc. No. 41), and Plaintiff’s Affidavit dated October 12, 2022 (NYSCEF Doc. 77), stated Plaintiff’s belief that photograph(s) and text messages would be found on Aaron Einsidler’s iPhone that would corroborate Plaintiff’s claims of being physically and sexually assaulted by, and receiving numerous phone calls and texts from, Aaron M. Einsidler, Defendant’s son now deceased (hereinafter “Deceased.”). 6. This Court ordered that Apple provide Defendant with access to the Deceased’s iPhone and the iPhone Cloud for the purposes of providing text messages and a photograph allegedly taken during Plaintiff’s claimed assault by the Deceased and the Deceased’s wife. 7. The medical examiner’s office provided a photograph of a tattoo on the Deceased’s private area consistent with Plaintiff’s identification of that tattoo during the alleged assault, as stated in Plaintiff’s Affidavit of April 29, 2022 (NYSCEF Doc. No. 41). 2 of 5 FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023 8. On May 12, 2023, Defendant’s counsel informed this Firm, by email with letter attached, that Defendant obtained access to Decedent’s iPhone but that no photo of the alleged assault existed as Plaintiff had anticipated and no relevant text messages existed, according to Defendant’s counsel, that would support Plaintiff’s claims. 9. It is important to note that Defendant’s counsel refuses to give us any subpoenaed information to establish his allegations contained in his May 12, 2023 letter in regard to evidence found on the iPhone or in the iCloud. 10. Please see Exhibit A for Defendant’s counsel’s email and letter. 11. In the aforementioned email and letter, Defendant’s counsel suggested that this Firm should discuss the contents of the letter with Plaintiff. 12. The letter also reproduced alleged text message(s) that Defendant’s counsel claimed were recently sent by Plaintiff to Defendant, the contents of said alleged text message, if truly sent by Plaintiff, seemingly prejudiced Plaintiff’s entire cause of action against Defendant: “I am not autistic. I have problems that I deal with everyday of my life. I am in Bedford because I took care of an elderly lady and her son and She left me almost a million dollars. I invested that money in real estate I have been alone my whole life. I was Your son’s friend and I looked out for him. He was doing really well and staying away from bad stuff. I couldn’t help him and I can’t sleep anymore. You want to hurt me that’s ok. I know You tried to save him. He told me my Dad is buying me. House near him bc he thinks something is going to happen to me. Then You wouldnt go to his wedding at the house because he said You were fighting. I was there for all of it. I helped him so much he called me Uncle. I won’t bother You again but I never lied. I did speak with You at the gas station. I was worried about him. You had me all wrong from the beginning. I got Your son away from bad people. Ok I am going to see my Mom. Once again sorry to bother You. You want to talk I am willing. Take care . . . .” 3 of 5 FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023 13. After discussing the contents of the alleged text message with our client, Plaintiff NEIL B. RICE, along with the contents of the entire letter sent by Defendant’s counsel, this Firm notified Plaintiff that this Firm could no longer represent Plaintiff and that we would be asking the Court to relieve us as counsel because of the irreconcilable differences between counsel and Plaintiff regarding the proper course to be pursued in the litigation. 14. On May 15, 2023, we communicated with Defendant’s counsel that we would be moving this Court to relieve us as counsel and to stay proceedings for 30 days for Mr. Rice to seek new representation. 15. Please see email exchange at Exhibit B. 16. Pursuant to both the New York Lawyer's Code of Professional Responsibility and the New York Rules of Professional Conduct, a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if . . . [the client’s] conduct renders it unreasonably difficult for the lawyer to carry out employment effectively.” 17. The contents of the alleged text message are in direct opposition to Plaintiff’s theory of the case; Plaintiff’s counsel had no knowledge or information regarding the alleged text message prior to defendant-counsel’s letter dated May 12, 2023. 18. In addition, Plaintiff’s refusal to abide by this Firm’s counsel has made it impossible for this Firm to provide effective counsel in this proceeding. 4 of 5 FILED: WESTCHESTER COUNTY CLERK 05/31/2023 04:26 PM INDEX NO. 61665/2021 NYSCEF DOC. NO. 162 RECEIVED NYSCEF: 05/31/2023 19. Plaintiff intends to continue with this cause of action and has instructed us to ask this Court for the opportunity for him to obtain new counsel. WHEREFORE, it is respectfully requested that this Court grant Rosman Legal, P.C. leave to withdraw as counsel to Plaintiff and stay all proceedings for 30 days to allow Plaintiff to seek new counsel, along with such other and further relief that this Court deems just and proper. Dated: Irvington, New York May 31, 2023 ROSMAN LEGAL, P.C. Attorneys for Plaintiff ______________________________ By: Steven M. Brunnlehrman, Esq. Of Counsel Rosman Legal, P.C. 10 Cayuga Lane Irvington, New York 10533 (914) 339-9870 To: YANKWITT LLP Attorneys for Defendant 140 Grand Street, Suite 705 White Plains, NY 10601 (914) 686-1500 5 of 5