FILED: NEW YORK COUNTY CLERK 08/12/ :43 PM INDEX NO /2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2016

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1 FILED: NEW YORK COUNTY CLERK 08/12/ :43 PM INDEX NO /2015 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/12/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK POLO ELECTRIC, CORP., and STATHIS ENTERPRISES, LLC, Index No.: /2015 Plaintiffs, - against - BRIEF OF ARGUMENT ASPEN AMERICAN INSURANCE COMPANY, Defendant. ARGUMENT POINT I THIS ACTION IS NOT A CRIMINAL MATTER WHERE THE CLIENT IS A CRIMINAL DEFENDANT, AND THEREFORE, THE LAW DOES NOT REQUIRE THE WITHDRAWAL OF COUNSEL, AND IT WOULD NOT BE ERROR TO DENY COUNSEL S REQUEST TO BE RELIEVED FOR GOOD CAUSE POINT II AN ATTORNEY CANNOT UNILATERALLY DECIDE TO JUST QUIT WHEN HE HAS UNDERTAKEN AND BEEN ENTRUSTED WITH THE OBLIGATION OF ZEALOUSLY PURSUING AND COMPETENTLY HANDLING A LITIGATION MATTER, AND THEREFORE, COUNSEL S REQUEST TO BE RELIEVED FOR GOOD CAUSE SHOULD BE DENEID NOTWITHSTANDING THAT THE CLIENT CONCEDES THAT SUFFICIENT CAUSE EXISTS It becomes rather patently apparent from the very first threats from Pardalis & Nohavicka, LLP back in March 23, 2016, that for reasons wholly unrelated to the Aspen litigation, Pardalis & Nohavicka, LLP became strongly motivated to try and manufacture a reason to withdraw from this litigation matter. The firm s initially stated excuse was that a conflict, which had just become apparent, required Pardalis & Nohavicka, LLP to withdraw from a multi-million dollar litigation matter so that it could continue to instead represent Taso Pardalis, Esq. s wife, Maria Pardalis, in a $10, transactional matter with Constance Antzoulis (the owner and President of Polo 1 of 9

2 Electric, Corp.), which concluded less than a day later. See Exhibit C (pg ). After the Eventsy, Inc. closing had occurred on March 23, 2016, less than a day after those late March 22, pm s, Pardalis & Nohavicka, LLP needed a new excuse to hang their hat on in order to argue that good cause existed for their withdrawal. The firm insisted that there was still some kind of restriction or prohibition in place preventing Pardalis & Nohavicka, LLP from communicating directly to Sam Stathis and Constance Antzoulis, or any other key person from Polo Electric, Corp., despite unambiguous and explicit communications by Mr. Langadakis directly to Mr. Nohavicka to the contrary. When Pardalis & Nohavicka, LLP realized that it couldn t hang its hat on any fault or wrongdoing on the part of the client, the firm shifted gears in terms of strategizing how it would manufacture a new pre-text in order to be relieved as counsel, rather than at least show some overt interest or willingness to take Mr. Langadakis up on his offer to try and reconcile any negative feelings from the Eventsy, Inc. transactional matter and continue productively on the Aspen litigation matter. [Aff. in Opp ]. Pardalis & Nohavicka, LLP attempted to create this strain on the relationship passively, indirectly, yet aggressively. It started with a standstill in communication, the cause and driver of which becomes apparent by observing the back-and-forth exchange, or lack thereof, between the attorney and client (or outside general counsel for Polo Electric, Corp.) in a manner that the Court s own common sense, experience and judgment can understand was rather atypical of an attorney genuinely looking to act and serve as a zealous advocate for their client and consult and keep the client abreast of material aspects of the litigation. When that turned out to not be enough for Polo Electric, Corp. to pull the trigger and Page 2 of 9 2 of 9

3 relieve Pardalis & Nohavicka, LLP as counsel of record, Pardalis & Nohavicka, LLP upped the ante. As became apparent immediately prior to Mr. Langadakis subpoenaed deposition, it was Pardalis & Nohavicka, LLP who took it upon itself to actively insist that Mound Cotton take Mr. Langadakis deposition, even though Mound Cotton had expressed to Pardalis & Nohavicka, LLP that it had no interest in and was waiving the taking of any further depositions. [Aff. in Opp ]. When that still failed to pressure Polo Electric, Corp. to pull the trigger and voluntarily grant Pardalis & Nohavicka, LLP s withdrawal as counsel of record, the communications contained in Exhibit D occurred, which speak for themselves. Rather than respond to Mr. Langadakis request to Yesy Sanchez, Esq. dated August 1, 2016, Pardalis & Nohavicka, LLP sought to instead make an emergency application seeking leave to withdraw. By the time cooler minds and thinking prevailed, it was already too late, Pardalis & Nohavicka, LLP had already overtly stated and made the genuine reasons and motivations for their desired withdrawal abundantly clear and in writing. [Exhibit C]. Any subsequent attempt by Pardalis & Nohavicka, LLP to passively and covertly subterfuge the litigation for their clients could not conceal or persuade any reasonable fact-finder as to the real underlying motivations and causes behind the breakdown in the attorney-client relationship. Till this day, the underlying reasons or foundations for Mr. Nohavicka s sudden change in behavior remain unknown. Perhaps Mr. Nohavicka realized that he or his firm bit off more than they could chew by deciding to take on this case, and he was desperate for any excuse or reason to try and get out of having to handle the Aspen litigation matter any further. Perhaps after the money stopped flowing from the Stathis family over to the Pardalis family after the completion of Ms. Page 3 of 9 3 of 9

4 Pardalis buy-out on March 23, 2016, Pardalis & Nohavicka, LLP suddenly lost their motivation to work with the Stathis family any longer, including seeing the Aspen litigation through. Unfortunately, we can t get into Mr. Nohavicka s or Mr. Pardalis mind. We will never truly know the why behind the what. What we can say we know, however, is that the breakdown of the attorney-client relationship was not something that was caused by the client in this instance, but rather, a calculated and engineered effort by Pardalis & Nohavicka, LLP to withdraw from the Aspen litigation. Therefore, at a minimum, counsel of record s request for leave to withdraw for good cause shown should be denied, notwithstanding that the client s request that counsel of record be discharged for good cause may be granted. POINT III COUNSEL OF RECORD SHOULD BE DISCHARGED BY THE CLIENT FOR GOOD CAUSE, BECAUSE IN ADDITION TO SUFFICIENT CAUSE EXISTING, IT HAS BEEN COUNSEL OF RECORD NOT THE CLIENT WHO HAS BEEN PRIMARILY RESPONSIBLE FOR WILLFULLY CAUSING THE BREAKDOWN OF THE ATTORNEY-CLIENT RELATIONSHIP At the outset, this is not a case where the client has not been paying the attorney s fees. This is not a case where the attorney has been trying to communicate with the client, but the client will simply not respond to or communicate with the attorney. This is not a case where the client has some kind of unreasonable expectations or issues with the allocation of authority between attorney and client. This is simply a case where the attorney, for no good reason, simply just wanted out of the case. Without a doubt, the attorney-client relationship has completely broken down, despite the multiple efforts by the client to attempt to save it or prevent it from doing so. We can put a check Page 4 of 9 4 of 9

5 mark next to the box for sufficient cause there is definitely no way that the attorney-client relationship can continue to exist between the plaintiffs and Pardalis & Nohavicka, LLP. We know that regardless which way the movant s and cross-movant s requests are resolved, the end result will be that these parties simply cannot be forced to continue pretending like they have some kind of attorney-client relationship. The only real question that remains is who is terminating whom? I submit to the Court that the movant cannot demonstrate good cause for terminating their relationship with the client. On the other hand, for the very reason why the movant cannot demonstrate good cause, I submit that it is rather obvious why the client has good cause for discharging Pardalis & Nohavicka, LLP as counsel of record for the underlying litigation matter. Therefore, counsel of record should be discharged for good cause, pursuant to the client s request for such relief within its cross-motion. POINT IV SANCTIONS ARE UNFORTUNATELY WARRANTED IN THIS INSTANCE, BECAUSE PART OF COUNSEL S WILLFULL ATTEMPT TO CAUSE THE BREAKDOWN OF THE ATTORNEY-CLIENT RELATIONSHIP INCLUDED CONDUCT THAT WAS PATENTLY FRIVILOUS AND CALCULATED TO HARASS AND MALICIOUSLY INJURE OR CAUSE ECONOMIC HARM TO OTHERS The Court s own common sense and experience, especially when it comes to matters regarding the litigation process and preparing to be able to present and satisfy certain burdens of proof at trial, allow the Court to appreciate and understand the distinction between the kind of attorney conduct that is genuinely trying to zealously advocate for the best interest of his client(s) compared to the kind of attorney conduct that is more likely than not motivated by a desire or purpose to harass or cause harm onto third-parties or even the attorney s own client(s). With that, Page 5 of 9 5 of 9

6 I submit to this Court that an examination of Exhibit D, in conjunction with the underlying facts and circumstances leading up to Pardalis & Nohavicka, LLP s emergency application seeking leave to withdraw support a finding that the kind of conduct undertaken by the firm s attorneys was primarily motivated to delay the resolution of the litigation, or harass or maliciously injure another. Pardalis & Nohavicka, LLP s was motivated to withdraw of this litigation starting on March 22, 2016, for reasons completely unrelated to its representation of the plaintiffs in this action. Joseph Nohavicka had made it rather clear that he considered Mr. Langadakis to be his enemy, to be on his short list, and that he just simply didn t want to deal with the firm s own client. [Aff. in Opp. 41]. Although the pre-textual excuses and stated justifications may have evolved throughout the course of the representation, the core underlying desire and motivation of Pardalis & Nohavicka, LLP to withdraw from representing the plaintiffs in the Aspen litigation matter did not fizzle since March 22, The assertion that the attorney-client relationship has just recently broken down due to an inability to come to a meeting of the minds as to the approach to be taken in regards to the litigation is patently pre-textual and false. I submit to the Court that actions and conduct, or lack thereof, speaks louder than words. The Court can review for itself the kinds of actions and conduct of Pardalis & Nohavicka, LLP contained within Exhibit C and Exhibit D. The Court can and should take into consideration Exhibit A and Exhibit B, in placing the actions and conduct of Pardalis & Nohavicka, LLP into context. Lastly, I submit that it would be reasonable and proper to conclude that at some point along its journey to manufacture an excuse to withdraw or apply pressure to the client to terminate the relationship and release Pardalis & Nohavicka, LLP, the law firm was hoisted by their own petard. The actions and conduct related to insisting on the taking of the deposition of the client s Page 6 of 9 6 of 9

7 own general counsel, despite opposing counsel having stated that she was not interested in any further depositions and was prepared to waive any further depositions, simply cannot be defended on any conceivable ground as to how it could have been motivated for any other purpose than for harassment. Yet, it unfortunately did not stop there. A new line was crossed with respect to endangering or risking the client s best interests. Apparently, if Pardalis & Nohavicka, LLP were seeking to prove an issue such as causation in a medical malpractice action, it would ask the client, Hey, do you feel like using any expert witnesses at trial, or not really? Then, if the client did intend to use expert witnesses at trial, Pardalis & Nohavicka, LLP would call George Clooney to the stand to testify on spinal fractures based on his experience as playing a doctor on television. Then, if the client were to dare commit the sin of suggesting that perhaps the appropriate expert to use would be an actual doctor of medicine, preferably one with experience related to spinal fracture injuries, Pardalis & Nohavicka, LLP would submit an emergency application seeking to be relieved as counsel of record for excellent cause. (sarcasm emphasized). That would be the story the Court would have to believe, I submit, if it would not be prepared to conclude that this kind of exchange was intended to harass or maliciously harm the actual client as key discovery deadlines drew closer. Tolerance is acceptance. Trust is the pre-requisite to deceit. A productive attorney-client relationship starts with the client trusting the attorney to be fair and honest towards the client. We expect clients to trust that their attorney will be fair and honest towards them by expecting that attorneys adhere to the professional rules of conduct and ethical duties clients expect their attorneys to have towards any client. If the Court is willing to accept and tolerate this kind of behavior, then the message it is effectively sending to the public is that this kind of behavior is Page 7 of 9 7 of 9

8 acceptable, tolerated without consequence, and therefore, permitted. I ask that the Court echo the opposite message, one where clients can point to with a sense of security and relief in knowing that the courts have no tolerance for that flavor of attorney conduct. CONCLUSION By reason of the foregoing, the relief requested in the emergency application Motion Sequence No. 2 should be denied, unless Pardalis & Nohavicka, LLP reimburse their client for the costs and expenses their own conduct will cause their client to incur in retaining a new counsel to become competent in this matter and proceed with any outstanding discovery items in a timely manner. Further, the Court should grant the relief requested in the Notice of Cross-Motion, Sequence No. 3, with respect to costs, attorneys fees and the imposition of sanctions. Further, given the issues presented in this litigation, the Court should grant the plaintiffs at least a ninety (90) day stay of the proceedings, in order to allow the plaintiffs an opportunity to secure new counsel and allow such new counsel enough time to become competent and abreast of the litigation matter. Further, the Court should grant the client s request to discharge counsel for good cause. Lastly, the Court should grant any other relief it beliefs is fair, equitable and just. Dated: Rego Park, New York August 12, 2016 Respectfully, Page 8 of 9 Angelo Langadakis III, Esq. 8 of 9

9 Law Office of Angelo Langadakis III, P.C. Outside General Counsel for, POLO ELECTRIC, CORP rd Road, Ste. 1G Rego Park, NY Tel: (646) Page 9 of 9 9 of 9