Agostino Iacobellis, plaintiff, v. A-1 Tool Rental, Inc., et al., --- N.Y.S.2d ----, 2009 WL 2884726N.Y.A.D. 2 Dept., September 11, 2009.
On September 11, 2009, I blawged about the Agostino v. A-1 Tool Rental case which denied Wilson Elser Moskowitz Edelman & Dicker, LLP's motion to withdraw as counsel on the grounds that such motions are "poor vehicles" to determine coverage issues. Given that it has been the settled law of New York for 40 years that insurance disputes cannot be settled in the context of a motion to withdraw (Brothers v. Burt, 27 N.Y.2d 905, 265 N.E.2d 922 (N.Y. 1970)),it seemed reasonable to assume that Wilson Elser was seeking to withdraw because it was not being paid, an appropriate basis to withdraw as counsel, regardless of whether an insurance dispute is at the foundation of the nonpayment. Galvano v. Valvano, 193 A.D.2d 779, 598 N.Y.S.2d 268 (2d Dep't 1993). In fact, the First Department in Dillon v. Otis Elevator, Inc., 22 A.D.3d 1,4, 800 N.Y.S.2d 385, 387 (1st Dep't 2005) explicitly held that where there is an independent ground to withdraw, it is an insufficient defense to the motion to "merely repeat the refrain that a motion to withdraw is an inappropriate vehicle for testing coverage." Since my blawg, I not only have I confirmed that Wilson Elser was indeed, not being paid, but the firm in addition, claims it submitted evidence to the court that its client had refused to cooperate with its defense and moreover, that the client had sent a letter declaring it did not want Wilson Elser to represent them.
What is going on here?!