### Altium Growth Fund, L.P. v Tingo Group, Inc. 2024 NY Slip Op 32993(U) August 23, 2024 Supreme Court, New York County Docket Number: Index No. 651910/2023 Judge: Andrew Borrok Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 276


### SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 53

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ALTIUM GROWTH FUND, L.P., ALTO OPPORTUNITY MASTER FUND, SPC - SEGREGATED MASTER PORTFOLIO B, EMPERY ASSET MASTER LTD., EMPERY TAX EFFICIENT, L.P., EMPERYTAX EFFICIENT Ill, L.P. INDEX NO. MOTION DATE INDEX NO. 651910/2023 RECEIVED NYSCEF: 08/23/2024

651910/2023

03/25/2024 MOTION SEQ. NO. 008 Plaintiff,

- V - TINGO GROUP, INC. F/K/A MICT, INC., 

### DECISION+ ORDERON MOTION Defendant.

-----------------------------------------------------------------------------------X HON. ANDREW BORROK: The following e-filed documents, listed by NYSCEF document number (Motion 008) 242, 243, 244, 245, 260,261,262 were read on this motion to/for ATTORNEYDISQUALIFY/RELIEVE/SUBSTITUTE/WITHDRAW 

### Upon the foregoing documents and for the reasons set forth below, Greenberg Traurig, LLP 

### (Greenberg)'s motion (Mot. Seq. No. 008) to withdraw as counsel for Tingo Group, Inc. f/k/a MICT, Inc. 

### (Tingo) is DENIED.
As discussed further below, Greenberg fails to meetits burden that withdrawal is appropriate at this time because Altium Growth Fund, L.P., EmperyAssetMasterLtd., Empery Tax Efficient, L.P., Empery Tax Efficient III, L.P. (collectively, the 

### Judgment Creditors) wouldbe substantiallyprejudicedby Greenberg's withdrawal in this lawsuit. 

### (See Haskell vHaskell, 185 AD2d 333 [2d Dept 1992]). Among other things, Greenberg has been involvedin this case since inception andhas made substantial representations about Tingo's financial condition, its ability to satisfy anypotentialjudgment (beforejudgmentwas entered) and otherwise indicated that

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### [* 1]NYSCEF DOC. NO. 276 INDEX NO. 651910/2023 RECEIVED NYSCEF: 08/23/2024 

### Tingo was not absconding with assets from thejurisdiction. In theirmovingpapers seeking withdrawal they make no mention ofhow Tingo, a corporate defendant, wouldproceed and what provision has been made for successor counsel to take over the case in a mannerwhich would avoid prejudice to the Judgment Creditors. Greenberg also fails to identify any fundamental breakdown in the attorney-clientrelationship warranting withdrawal. This is plainly insufficient.
The Relevant Facts and Circumstances As relevant, the Judgment Creditors broughtthis lawsuit on April 18, 2023 and, following certain substantial motion practice in which Greenberg made certainrepresentations to the Court (including, among other things, facts as to Tingo's financial condition and its ability to satisfy anyjudgment and whether Tingo was dissipating assets out ofthejurisdiction), obtained an $18,235,347.22 Judgment (the Judgment; NYSCEF Doc. No. 234, at 4). The Courtretained jurisdiction over this action withrespect to the enforcement ofthe Judgment and any related claims that maybe brought against additional parties. (NYSCEF Doc. No. 234, at 5) Following entry ofthe Judgment, Tingo was ordered to deposit with the County Clerk, a sufficientnumber ofshares ofcommon stock to satisfy the Judgment and, within 48 hours ofa demand bythe Judgment Creditors, to deposit an additional number ofshares to the extent such additional shares were necessary to maintain the value ofthe Judgment. To date, Tingo has not made anypayments to the Judgment Creditors (NYSCEF Doc. No. 247,J 

### 2).

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### [* 2]NYSCEF DOC. NO. 276 INDEX NO. 651910/2023 RECEIVED NYSCEF: 08/23/2024 Subsequently, on March 12, 2024, the Judgment Creditors served an information subpoena on Greenberg 

### (Greenberg Information Subpoena) seeking information regarding Tingo's financial situation. 

### (See NYSCEF Doc. No. 262). Thereafter, on March 21, 2024, the Judgment Creditors informed Greenberg via email that the Judgment Creditors intended to serve an information subpoena on Tingo pursuantto CPLR Article 52 

### (Tingo Information Subpoena; NYSCEF Doc. No. 248), to compel Tingo to disclose "all matterrelevanttothe satisfaction ofthe [J]udgment." (NYSCEF Doc. No. 249; CPLR § 5223).
On March 22, 2024, Greenberg provided objections and limitedresponses to the Greenberg Informaton Subpeona and also filed the instantmotion to withdraw (NYSCEF Doc. Nos. 260 

### ,i 8,262). Among otherthings, Greenberg objected to the Greenberg Information Subpoena on the grounds that "thereis a more readily available source ofinformation, 

### e.g., from the public domain or directly from [Tingo]," and thatthe subpoenaimposed on Greenberg "theburdento conduct discovery on behalfof[Tingo]" and "shift[ed Tingo's] responsibility to conducttheir own discovery to [Greenberg]." (NYSCEF Doc. No. 262

### ,i,i 3-4); Subsequently, on April 17, 2024, Greenbergprovided supplemental responses.
On March 25, 2024, the Judgment Creditors followed up with Greenberg aboutthe Tingo Information Subpeona. On March 27, 2024, Greenberg responded via email that itwas "not authorized to accept service ofthe [Tingo Information Subpoena]" and that ithad "notbeen

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### [* 3]NYSCEF DOC. NO. 276 INDEX NO. 651910/2023 RECEIVED NYSCEF: 08/23/2024


### retained to assist Tingo ... in connection with any post-judgment proceedings." (NYSCEF Doc. No. 249).
The Judgment Creditors then served the Tingo Information Subpoena on Tingo and Tingo's Interim Co-ChiefExecutive Officer Ken Denos 

### (Mr. Denos) by certified mail and email, respectively. (NYSCEF Doc. Nos. 252,253,261). The Judgment Creditors informed Mr. Denos that Greenberg had stated ithad notbeenretained to assist Tingo with post-judgment proceedings, that Tingo's answers to the Tingo Information Subpoenawere due byApril 22, 2024, and that Tingo mayreturn its answers electronically for its convenience (NYSCEF Doc. No. 261). After Tingo failed to acknowledge the subpoena orto file its answerbythe deadline, the Judgment Creditors followed up with Mr. Denos byemail on May 2, 2024.
When this too wentunanswered, the Judgment Creditors sought an order from this Court on May 7, 2024, compelling Tingo's compliance with the Tingo Information Subpoena; The Court issued the orderrequiring compliance on May 10, 2024. (NYSCEF Doc. No. 258). However, the next day, and only after the Judgment Creditors sought the Court's intervention, Mr. Denos finally responded to the Judgment Creditors, informing them that Tingo "does not have available staff, infrastructure orresources to respond to [the Judgment Creditors'] requests," because "[a]ny individuals ... that are assisting the company are doing so on part-timebasis and without compensation." (NYSCEF Doc. No. 261). 

### Discussion The decision to grant or deny amotion to berelieved as counsel lies within the sound discretion ofthe trial court (

### Cashdan v Cashdan, 243 AD2d 598 [2d Dept 1997]). In orderto "terminate the

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### [* 4]NYSCEF DOC. NO. 276 INDEX NO. 651910/2023 RECEIVED NYSCEF: 08/23/2024 relationship with a client," the moving counsel "mustmake a showing ofgood or sufficient cause and reasonable notice." 

### (George v George, 217 AD2d 913 [4th Dept 1995]). Greenberg fails to meet its burden thatwithdrawal is appropriate at this time.
As an initial matter, the Courtnotes that a corporation must appear in a civil action by attorney. (CPLR § 3219[a]). Greenberghas been counsel ofrecordin this action for Tingo since its inception and has participated substantially on Tingo'sbehalf In its moving papers, Greenberg fails to identify any substitute counsel orprocedure for any substitute counsel for Tingo to be broughtup to speed such that the Judgment Creditor wouldnotbeprejudicedbyits withdrawal.
To be clear, Greenberg's basis for withdrawal is that Tingo has an "unfulfilled obligation"
-- 1e., it is owedmoneybyTingo (NYSCEF Doc. No. 243 

### ,i 3). However, the "mere fact that a client fails to pay an attorney for services rendered does not, withoutmore, entitle the attorney to withdraw." 

### (Kaufman v Kaufman, 63 A.D.3d 618 [1st Dept 2009]; 

### see, e.g., Haskell, 185 AD2d 333 [holding that, although counsel hadnotbeen paidbyits clients for one year as ofthe date counsel filed its motion to withdraw, withdrawal was not warranted where "substitution of counsel at this late date wouldhave only further delayedresolution of [the] matter"]). As discussed above, the moving papers make no mention ofanyprovision for successor counsel or otherwise adequately address how the Judgment Creditorwouldnotbe substantiallyprejudiced bytheirwithdrawal. This is plainlyinsufficient. Unquestionably, the Judgment Creditorwould beprejudiced. Thus, the motion is DENIED.
The Court has considered Greenberg's remaining arguments and finds them unavailing.

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### [* 5]INDEX NO. 651910/2023 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 08/23/2024

8/23/2024

DATE ANDREW BORROK, J.S.C. CHECK ONE:

# ~ CASE DISPOSED

# ~ NON-FINAL DISPOSITION GRANTED 

# 0 DENIED GRANTED IN PART

# □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT

# □ REFERENCE

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