On September 14, 2022, the Second Department issued a decision in JPMorgan Chase Bank, N.A. v. Simonsen, 2022 NY Slip Op. 05156, holding that a defendant whose lawyer had been suspended from practice could not be defaulted unless served with a notice to appoint new counsel had been served, explaining:
CPLR 321(c) provides, inter alia, that if an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he or she appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party. During the stay imposed by CPLR 321(c), no proceedings against the party will have any adverse effect and orders or judgments that are rendered in violation of the stay provisions of CPLR 321(c) must be vacated. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days. The protections of CPLR 321(c) can be waived where the party elects to proceed pro se or retains a new counsel who formally appears in the action.
This action was automatically stayed by operation of CPLR 321(c) on October 28, 2014, the effective date of Sirianni’s suspension from the practice of law. At no point was Simonsen provided, pursuant to CPLR 321(c), with the required notice to appoint another attorney, either by the court or opposing counsel. Moreover, the withdrawal order, which granted Sirianni’s motion pursuant to CPLR 321(b)(2) for leave to withdraw as counsel for Simonsen, had no practical effect as to whether the notice provision of CPLR 321(c) applied to this case. In any event, the withdrawal order failed to direct service of a notice to appoint another attorney upon Simonsen, and there is no evidence in the record that Simonsen was ever served with a copy of the withdrawal order. The record is also devoid of any evidence that, on or after October 28, 2014, Simonsen waived the protections of CPLR 321(c) by electing to proceed pro se. Therefore, the automatic stay was not lifted until Simonsen moved, in effect, to vacate the summary judgment order.
The plaintiff’s contention that the Supreme Court properly granted leave to proceed with the action, in the absence of notice to Simonsen, is unavailing. The statutory provision for court leave was designed to allow an action to continue in cases where the stay of proceedings would produce undue hardship to the opposing party, as where the time to take an appeal or other action would run or where a provisional remedy is sought and speed is essential. No such circumstances are present here.
(Internal quotations and citations omitted).