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Surrogate's Court, New York County, November 5, 2008
APPEARANCES OF COUNSEL
Kornstein Veisz Wexler & Pollard, LLP, New York City (Ina R. Bort and Daniel Kornstein of counsel), for James Cheney, plaintiff. Stephanie E. Kupferman, New York City, nonparty movant pro se. Diane Wells, defendant pro se.
{**23 Misc 3d at 162} OPINION OF THE COURT
Kristin Booth Glen, S.
This motion to withdraw as counsel raises serious and important issues about the obligations of the court and of counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action.
Movant represents Diane Wells, defendant in an action initially brought in Supreme Court, New York County, by her now-deceased mother, Joyce Cheney. Following Joyce's death, her son, and Diane's brother, James Cheney, preliminary executor of Joyce's estate, was substituted as plaintiff.
While there are 11 separate causes of action,[FN1] the common factual background involves claims that, while living with Joyce in Joyce's [*2]apartment, Diane engaged in a long course of harassment, threats and mistreatment of her mother that ended only when Diane was arrested and convicted for an assault on Joyce resulting in the latter's broken arm. Subsequent criminal charges against Diane, for allegedly soliciting her brother's murder, were dismissed.{**23 Misc 3d at 163}
After various proceedings in Supreme Court, during which Diane was first represented by Raoul Felder,[FN2] and then by Kramer & Dunleavy,[FN3] the case was transferred to this court by order dated August 23, 2007.[FN4]
Since that time, as the case moved toward trial, Diane has gone through four separate sets of counsel. She was initially represented by the Law Offices of Gerald Shargel and Wachtel & Masyr, LLP by Howard Elman; on January 15, 2008 and February 25, 2008, Judd Burstein was substituted for Elman and Shargel, respectively. Burstein moved to be relieved in March 2008, stating, inter alia, that Diane has made it "unreasonably difficult" for him "to carry out employment effectively," citing Code of Professional Responsibility DR 2-110 (c) (1) (iv) (22 NYCRR 1200.15 [c] [1] [iv]), and that "it is almost impossible to adequately describe the nightmare of representing Ms. Wells." Burstein noted, "It is clear that Ms. Wells is a severely emotionally damaged person." Describing a conference call about discovery matters, and an upcoming court date, Burstein reports that Diane "explained to [a court attorney/referee] that she was psychologically incapable of appearing in court" on the appointed date. After a conference with the court, at which he further elucidated the difficulties which led to his motion, Burstein was permitted to withdraw, and Diane was given a continuance to obtain new counsel. As of that date, the trial was scheduled to begin on May 18, 2008.
In April 2008, Diane retained Joshua R. Katz,[FN5] an attorney who had previously been employed at the Felder firm. The retainer agreement anticipated that Katz would secure the services of trial counsel, and in May 2008, after interviewing several firms, he was successful in matching Ms. Wells with the law firm of Castro & Karten. Almost literally on the eve of trial, that firm sought an adjournment which was vigorously opposed{**23 Misc 3d at 164} by James' counsel. Castro & [*3]Karten assured the court that, unlike previous counsel, they would be able to effectively deal with Diane and be ready for trial in August 2008. Citing Diane's psychiatric problems and communications with her treating psychiatrist, Dr. Stuart Serdam, new counsel noted his prescription of new medications, and Diane's promise that she would have live-in help to ensure that she took those medications which would allow her to relate effectively and appropriately to counsel in the course of
trial preparation and trial.[FN6]
The motion was granted, and the trial was adjourned to August 4, 2008, marked final against defendant. On July 18, Castro & Karten moved for leave to withdraw on the grounds, inter alia, that "Wells has engaged in such conduct which renders it unreasonably difficult for Castro & Karten to carry out its employment effectively" pursuant to DR 2-110 of the Code of Professional Responsibility. In support of their motion, they supplied an extensive in camera affidavit detailing issues and
difficulties in their representation of Diane.[FN7]
Shortly thereafter, Joshua Katz also moved to withdraw on several grounds, including "a breakdown in communication such that [Diane] refuse[d] to accept [his] advice and counsel" and Diane's "verbally abusive behavior." In addition, because of Castro & Karten's motion, Katz now feared that he would be required to serve as trial counsel, a role for which, he claimed, he was neither suited
nor retained.[FN8] On July 28, the return date of both motions, after considerable colloquy, Castro & Karten's motion was granted and Katz's held in abeyance, as the latter neither alleged nor provided information (in camera or otherwise) that the attorney-client relationship had so deteriorated that he
could no longer represent Diane consistent with his{**23 Misc 3d at 165} ethical responsibilities.[FN9] Once again the trial date was adjourned, this time to October 22nd, and again it was marked final against Diane.
Thereafter, in August 2008, Diane filed a consent to change attorney and notice of appearance from Stephanie E. Kupferman of Kupferman & Kupferman. Counsel for James then moved to require Katz to remain as counsel because"[g]iven the unique and troubling history here

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