A Magistrate Court judge in New York has denied a plaintiff’s attorney’s motion to withdraw as counsel in a Fair Debt Collection Practices Act lawsuit and granted a motion from the defendant for fees and costs, ordering the plaintiff’s attorney to pay $4,358.93 after the plaintiff failed to appear for a deposition.
The Background: Back in February, the defendant served a notice of deposition to the plaintiff’s attorney. The deposition was scheduled for March 20. Five days before the deposition, the defendant’s attorney sent an email to Daniel Zemel, the plaintiff’s attorney, to confirm. Three days later, Zemel replied, saying he would be attending remotely and he was waiting to hear back from his client on confirmation. The next day — the day before the deposition — Zemel emailed Brendan Little, the defendant’s attorney to say the plaintiff was not available and that he would provide alternate dates.
- The court had imposed a deadline of March 28 for completion of fact discovery. Little then sought to schedule the deposition for March 22.
- After not receiving a response from Zemel, Little sent Zemel an email on March 19 indicating he was moving forward with the deposition the following day.
- The plaintiff did not appear for the deposition, forcing Little to request an extension for the fact discovery deadline.
- On March 25, Zemel filed a motion to withdraw as counsel, saying that the plaintiff had repeatedly failed to respond to attempts to communicate with her or Credit Repair Lawyers of America.
- During a hearing on May 7, Zemel was unable to answer questions from the court concerning his communications with the plaintiff and offered conflicting representations regarding the last time he or CRLA had received a communication from the plaintiff. Zemel represented that he hadn’t heard from the plaintiff since December 2023, which conflicted with his statement regarding the plaintiff’s availability for the deposition.
- Ultimately, Zemel said he misunderstood an internal email that caused him to believe the plaintiff was not available. The plaintiff, in fact, never indicated whether she was available.
The Ruling: A discrepancy between CRLA and Zemel over when the last time either had contact with the plaintiff was “particularly troubling” for Judge Marian W. Payson of the District Court for the Western District of New York. This is not the first time there have been issues with cases involving Zemel and CRLA, Judge Payson noted.
- “Rather than demonstrating that [the plaintiff] has displayed a pattern of non-responsiveness with counsel that justifies Zemel’s withdrawal, the supplemental submission demonstrates that there were ‘numerous’ communications between [the plaintiff] and counsel and that counsel in fact received a communication from [the plaintiff] after the motion to withdraw was filed,” Judge Payson wrote. “The fact that [the plaintiff] and CRLA communicated in April 2024 was not disclosed to the Court before or at oral argument. Indeed, when it finally was, it was provided with little factual detail, thus raising more questions than answers.”
