Hirsch v. Hirsch

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In re: 	Case No.: 1-02-17966-jbr
BENJAMIN HIRSCH, 	Chapter 7
Debtor.
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NACHAMA HIRSCH,
Plaintiff, 	Adv. Proc. No.: 1-07-01139-jbr
-against-
BENJAMIN HIRSCH,
Defendant.
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Appearances:
Gary M. Kushner, Esq.
Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP
Attorneys for Plaintiff
330 Old Country Road
P.O. Box 31
Mineola, New York 11501
Nachama Hirsch
945 East 27th Street
Brooklyn, New York 11210
DECISION AND ORDER ON MOTION TO WITHDRAW AS ATTORNEY FOR
NACHAMA HIRSCH
WHEREAS, on April 16, 2007, Nachama Hirsch (the “plaintiff”), represented by
Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, filed a complaint commencing this
adversary proceeding against the debtor Benjamin Hirsch (the “defendant”); and
WHEREAS, on November 27, 2007, the Court issued an Order to Show Cause
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Why the Court Should Not Dismiss the Plaintiff’s Complaint for Failure to State a Claim, and
held a hearing on April 1, 2008; and
WHEREAS, on September 17, 2009, Forchelli, Curto, Deegan, Schwartz, Mineo,
Cohn & Terrana, LLP (the “Forchelli Law Firm”) filed a Motion to Withdraw as Attorney for
Nachama Hirsch; and
WHEREAS, on September 30, 2009, the Court issued an Order on Hearing for
Order to Show Cause Why the Complaint should not be Dismissed and granted the motion to
amend the Complaint; and
WHEREAS, on October 8, 2009, the Court held a hearing and denied the
Forchelli Law Firm’s Motion to Withdraw as Attorney in this adversary proceeding; and
WHEREAS, on October 19, 2009, Forchelli Law Firm filed a Notice of Appeal to
United States District Court, Eastern District of New York and on June 23, 2010, the District
Court, issued an Order for Remand for a further development of the factual record; and
WHEREAS, on August 20, 2010, the Court held an evidentiary hearing and took
the matter under advisement; and
UPON the due consideration of the arguments of counsel, the Declaration of Gary
M. Kushner, dated August 3, 2010, in further support of the application to withdraw as counsel
for Nachama Hirsch and the exhibits annexed thereto, the evidentiary hearing conducted on
August 20, 2010, the testimony of witnesses, and an examination of the papers submitted into
evidence, and upon all of the pleadings and proceedings heretofore had herein, this Court finds
THAT counsel should not be allowed to withdraw at this time; and
THAT Mrs. Hirsch presently lacks the ability to pay her financial obligations and
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has not deliberately disregarded her financial obligations. As the District Court pointed out,
simple nonpayment of legal fees and failure to comply with the retainer agreement is not a
proper basis for the withdrawal of counsel. United States v. Stein, 488 F.Supp.2d 370, 373
(S.D.N.Y.2007). Mrs. Hirsch understands and acknowledges her obligation to pay for the
services rendered to her, but at this time she has no meaning and fund to do so; and
THAT Mr. Kushner either was aware of or should have known Mrs. Hirsch’s
financial circumstances when he agreed to undertake the representation in this adversary
proceeding; and
THAT to the extent there are differences which may be interpreted to be
irreconcilable and potential conflicts between the plaintiff and Mr. Kushner and the Forchelli
Law Firm, limited services of amending the Complaint can be provided very quickly and with
moderate expenses and the Court believes that there is no need of extensive cooperation of the
plaintiff with her counsel at this juncture of the case. As an attorney, Mr. Kushner is an officer of
the court and he is obliged to render services even over his objection and without fee. Id.
THAT considering the history of this case, the withdrawal of the counsel at this
stage of the proceeding, until the amended complaint is filed, would be more prejudicial and
detrimental to Mrs. Hirsch, than to Mr. Kushner and the Forchelli Law Firm.
Therefore, it is hereby
ORDERED, that upon authorization by Mrs. Hirsch, Mr. Kushner and the
Forchelli Law Firm shall file on Mrs. Hirsch’s behalf an amended complaint in this adversary
proceeding on or before October 13, 2010; and it is further
ORDERED, that upon filing the amended complaint, Mr. Kushner and the
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Forchelli Law Firm may renew its application to be relieved as the counsel for Nachama Hirsch.
Dated: Brooklyn, New York
September 14, 2010
s/ Joel B. Rosenthal
Honorable Joel B. Rosenthal
United States Bankruptcy Judge
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