Welch Allyn, Inc. v. Vail Tool Co.

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly permitted the application of defendants’ attorney to withdraw to be made by cross motion rather than by order to show cause. Defendants’ and plaintiff’s counsel were aware of the application (see, CPLR 321 [b] [2]), were present during oral argument and did not object to the relief sought (see, Piercy v Piercy, 97 AD2d 972). Because defendants’ attorneys demonstrated sufficient cause, the court properly granted that application (see, Solomon v Solomon, 172 AD2d 1081).

The court erred, however, in simultaneously granting plaintiffs motion for partial summary judgment rather than ordering a 30-day stay to enable defendants to obtain new counsel to oppose plaintiffs motion on the merits (see, CPLR 321 [c]). Defendants’ counsel affirmed that defendants had a meritorious defense. The 45-day stay of future proceedings granted by the court was of limited usefulness because the court had already determined plaintiffs motion with respect to liability; all that was left was an inquest on damages at which defendants were precluded from presenting evidence of any records relative to cost other than invoices previously produced pursuant to court order.

We vacate the award of dispositive relief to plaintiff contained in paragraphs 2, 3, 4, 7, 8 and 9 of the order without prejudice to renewal of plaintiffs motion for partial summary judgment and other relief after the expiration of the statutory 30-day stay. In view of our determination, we have not considered the merits of plaintiffs motion. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.) Present — Green, J. P., Pine, Wesley, Callahan and Davis, JJ.