Mikolaenko v. New York University

Background

Levine & Blit PLLC moved to withdraw as counsel for Dr. Irina Mikolaenko. Counsel stated that withdrawal was necessary because Mikolaenko had failed to cooperate in prosecuting the case and had not paid legal fees. Counsel’s declaration said that Mikolaenko had avoided extensive efforts to contact her for nearly eight months.

The defendants opposed withdrawal because their summary-judgment motion had already been submitted and, in their view, withdrawal would substantially delay resolution of that motion. The court considered the reasons for withdrawal and its potential effect on the schedule.

Withdrawal of Counsel

The court held that Mikolaenko’s alleged failure to cooperate and failure to pay legal fees were sufficient reasons for counsel to withdraw. The court also concluded that withdrawal would not significantly affect the timing of the case. Without Mikolaenko’s cooperation, the court said, her lawyers likely could not prepare an adequate opposition to summary judgment. The court therefore granted Levine & Blit’s motion to withdraw.

Attorney’s Charging Lien

Counsel also sought a charging lien, which is a claim securing payment from a client’s eventual recovery in the case. The court explained that the lien would be based on the fair and reasonable value of counsel’s services, calculated under a method called quantum meruit, meaning the reasonable value of work performed.

The court denied at this time the request for a charging lien because counsel had submitted no estimate of the fees owed and no documentation that would allow the court to determine the proper amount.

Orders and Deadlines

The court ordered Mr. Moriarty to personally serve the order on Mikolaenko by March 20, 2020, and to file proof of service by March 25, 2020. He was also ordered to continue monitoring the case until the court directed otherwise. Mikolaenko could hire new counsel or proceed on her own without a lawyer. If she retained new counsel, the lawyer had to appear by May 8, 2020. If she proceeded without a lawyer, she had to provide the Southern District of New York’s Pro Se Office with her address and telephone number by that date.

The court stated that if Mikolaenko did not appear through counsel or on her own by May 8, it would consider the defendants’ summary-judgment motion unopposed and might consider dismissing the case for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure. The opinion did not decide the summary-judgment motion. A separate withdrawal motion filed by Amanda Slutsky because she had left Levine & Blit was declared moot.