FILED: MONROE COUNTY CLERK 01/17/2024 12:38 PM
`NYSCEF DOC. NO. 38
`MONROE COUNTY CLERK’S OFFICE
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`RECEIVED NYSCEF: 01/17/2024
`THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
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`INDEX NO. E2023008006
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`Return To:
`RICHARD FRANCO
`400 Meridian Centre Blvd.
`Suite 200
`Rochester, NY 14618
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` McClare, Susan
` McClare, Brian
` 178 Selborne Chase, LLC
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` Curts, Christian
` Curts Properties, LLC
` 178 Selborne LLC
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`Total Fees Paid:
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`Receipt # 3708390
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`Book Page CIVIL
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`No. Pages: 5
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`Instrument: MISCELLANEOUS DOCUMENT
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`Control #:
`Index #:
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`202401171487
`E2023008006
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`Date: 01/17/2024
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`Time: 5:12:39 PM
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`$0.00
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`Employee:
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`State of New York
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`MONROE COUNTY CLERK’S OFFICE
`WARNING – THIS SHEET CONSTITUTES THE CLERKS
`ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
`SECTION 319 OF THE REAL PROPERTY LAW OF THE
`STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
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`JAMIE ROMEO
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`MONROE COUNTY CLERK
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`1 of 5
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`202401171487
`FILED: MONROE COUNTY CLERK 01/17/2024 12:38 PM
`NYSCEF DOC. NO. 38
`
`Index # : E2023008006
`INDEX NO. E2023008006
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`RECEIVED NYSCEF: 01/17/2024
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`NEW YORK STATE SUPREME COURT
`COUNTY OF MONROE
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`SUSAN MCCLARE, BRIAN MCCLARE and
`178 SELBORNE CHASE, LLC
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`Plaintiffs,
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`-vs-
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`AFFIRMATION IN RESPONSE
`TO ORDER TO SHOW CAUSE
`AND
`IN OPPOSITION TO
`STAY
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`CHRISTIAN CURTS, CURTS PROPERTIES, LLC
`and 178 SELBORNE LLC
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` Index No.: E2023008006
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`Defendant.
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`Defendants, CHRISTIAN CURTS, CURTS PROPERTIES, LLC and 178 SELBORNE
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`LLC (“Defendants”) and through its attorneys Davidson Fink LLP, provides the following
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`Affirmation in Response to Plaintiff’s Order to Show Cause.
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`1.
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`2.
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`I am an attorney duly admitted to practice law in the State of New York.
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`I am counsel of record to Defendants Christian Curts, Curts Properties, LLC and
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`178 Selborne LLC (hereinafter “Defendants”).
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`3.
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`As Counsel Defendants, I am fully familiar with the facts and circumstances of this
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`case.
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`4.
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`On or about November 29, 2023, Plaintiff Brian McClare (hereinafter “McClare”)
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`sent a letter to the Court stating that Mr. Cheney informed him he was no longer willing to
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`represent him in this matter. (Exhibit “A” hereto).
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`5.
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`Defendants filed a letter in response on November 30, 2023, asking that the Court
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`direct Mr. Cheney to file a motion to discontinue and/or that Mr. Cheney obtain new counsel in
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`light of his letter, in an effort to prevent undue delay, particularly given that this case involves
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`202401171487
`FILED: MONROE COUNTY CLERK 01/17/2024 12:38 PM
`NYSCEF DOC. NO. 38
`
`Index #: E2023008006
`INDEX NO. E2023008006
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`RECEIVED NYSCEF: 01/17/2024
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`claims of ownership to a commercial property, costing Defendants money with each day the matter
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`is not resolved.
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`6.
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`McClare took no action whatsoever to find new counsel and continued to contact
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`Mr. Cheney despite Cheney’s repeated advice to find new counsel. (NYSEF Doc. No. 35, ¶ 2-8).
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`7.
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`McClare’s letter demonstrates that Mr. Cheney was aware was aware that he would
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`need to withdraw as counsel in November 2023, and that McClare was aware that he would need
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`to find new counsel, as confirmed in the Cheney Affirmation. (Ex. “A”; NYSEF Doc. No. 35).
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`8.
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`Given the undue delay caused by McClare and his attorney, Defendants respectfully
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`request that in the event the Order to Show Cause is granted, Plaintiff should be given no more
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`than thirty (30) days to acquire new counsel. (see, CPLR §321(c)).
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`9.
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`Defendants also ask that the Court calendar their pending Motion for Summary
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`Judgment as soon as possible following the expiration of any stay the Court may be inclined to
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`grant.
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`PLAINITFF IS NOT ENTITLED TO A STAY PURSUANT TO CPLR §321(C)
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`10.
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`In general, CPLR 321(c) requires that there be a thirty (30) day stay of all
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`proceedings after counsel is permitted to withdraw from an action over their client’s objection.
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`11.
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`This rule does not apply in the instant case.
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`12.
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`The exception to the automatic stay upon death or removal of an attorney was
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`applied in Art Cap. Bermuda Ltd. v. Bank of N.T. Butterfield & Sons Ltd., 213 A.D.3d 596, 597,
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`185 N.Y.S.3d 35, 37 (2023).
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`13.
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`In Art Cap. Bermuda Ltd., a plaintiff’s attorney withdrew from representing the
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`plaintiffs because the plaintiffs failed to pay their legal bills and were not cooperating with the
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`202401171487
`FILED: MONROE COUNTY CLERK 01/17/2024 12:38 PM
`NYSCEF DOC. NO. 38
`
`Index #: E2023008006
`INDEX NO. E2023008006
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`RECEIVED NYSCEF: 01/17/2024
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`attorney. The First Department held that the Supreme properly denied the plaintiff an automatic
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`stay pursuant to CPLR 321(c):
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`“We also reject plaintiff’s argument that a default judgment was
`entered against violation become uncooperative with
`the
`representations and failed to pay attorneys’ fees, not because
`counsel had ‘died, become [] physically or mentally incapacitated,
`or [been] removed, suspended or otherwise bec[ame] disabled’”.
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`(Id. at 597).
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`14.
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`Similarly, the Appellate Division also affirmed denial of a stay pursuant to CPLR
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`§321(c) in Transasia Commodities Inv. Ltd. v. NewLead JMEG, LLC, 169 A.D.3d 591, 592, 95
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`N.Y.S.3d 156, 157 (2019), where “their counsel withdrew due to defendants-appellants' failure to
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`pay accrued counsel's fees over an extended period of time”. (Id. at 592).
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`15.
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`In this case, just as in Art Cap. Bermuda Ltd. and Transasia Commodities Inv. Ltd.
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`v. NewLead JMEG, LLC, 169 A.D.3d 591, 592, 95 N.Y.S.3d 156, 157 (2019), Cheney’s affirmation
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`in support of the instant Order to Show Cause (“OSC”) testifies that, “it would take thirty (30)
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`days to find the time that Plaintiff demanded that this firm find in a single day”. Moreover, and
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`most importantly, Cheney testifies that Plaintiffs have not paid Cheney for his legal services, and
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`that they have no intention of doing so:
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`“[T]he cost to draft and file the requested motion in would have been
`approximately Four Thousand and 00/100 Dollars ($4,000.00), with
`little chance for a positive legal outcome. Plaintiff already has a
`large legal invoice with my firm that, upon information and belief,
`Plaintiff has no funds to actually pay the invoice and it is becoming
`increasingly clear that Plaintiff has no intention of actually paying
`for the legal services provided”.
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`(NYSEF Doc. No. 36).
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`16.
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`Here, just as in the Appellate cases cited above, because the withdrawal of
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`Plaintiff’s counsel was caused by a “voluntary act of the client, the court has discretion to permit
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`202401171487
`FILED: MONROE COUNTY CLERK 01/17/2024 12:38 PM
`NYSCEF DOC. NO. 38
`
`Index #: E2023008006
`INDEX NO. E2023008006
`
`RECEIVED NYSCEF: 01/17/2024
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`the matter to proceed without such a stay”. (Sarlo-Pinzur v. Pinzur, 59 A.D.3d 607, 608, 874
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`N.Y.S.2d 499, 500 (2nd Dept. 2009).
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`CONCLUSION
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`17.
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`As fully set forth above, Plaintiff’s own conduct in failing to cooperate with is
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`attorney and failing to pay attorney fees is the reason for Cheney’s withdrawal as counsel. As a
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`result, this Court should refuse to stay the action pursuant to CPLR §321(c), and permit Plaintiffs’
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`Motion for Summary Judgment to be heard as soon as possible in order to minimize and mitigate
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`the accrual of lost income resulting from this frivolous action.
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`WHEREFORE, it is respectfully requested that Defendants’ Motion be granted in its
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`entirety, along with such further relief as the Court may deem just and proper.
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`DATED: January 17, 2024
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`____________________
`Richard N. Franco, Esq.
`DAVIDSON FINK LLP
`400 Meridian Centre, Suite 200
`Rochester, New York 14618
`Telephone: (585) 546-6448
`Attorneys for Defendant
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