New York State Court of Claims

New York State Court of Claims

Eastmond v. STATE OF NEW YORK and CITY UNIVERSITY OF NEW YORK, #2000-001-001, Claim No. 093412, Motion No. M-61049


Synopsis


Claimant’s attorney granted permission to withdraw as counsel where repeated attempts to communicate with claimant were unsuccessful, thereby rendering it impossible for counsel to prosecute the action

Case Information

UID:
2000-001-001
Claimant(s):
JOAN EASTMOND
Claimant short name:
Eastmond
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
093412
Motion number(s):
M-61049
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant’s attorney:
Jacoby and MeyersBy: Katina S. Goldman, Esq.
Defendant’s attorney:
NYS Department of LawBy: Paula Pavlides, AAG
Third-party defendant’s attorney:

Signature date:
March 14, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on the motion by claimant’s attorney to withdraw as counsel pursuant to CPLR 321 (b) (2) and for other relief: Notice of Motion, dated January 11, 2000 and filed January 13, 2000; Affirmation of Katina S. Goldman, dated January 11, 2000 and filed January 13, 2000, with annexed Exhibits A-E; and Affirmation of Paula Pavlides, dated January 19, 2000 and filed January 24, 2000.


Claimant JOAN EASTMOND (“claimant”) was granted permission to file a late claim for personal injuries allegedly sustained when she fell in the 6th-floor shower area of the East Building located on defendant City University of New York’s Brookdale campus (see, Affirmation of Katina S. Goldman, dated January 11, 2000 and filed January 13, 2000 [“Goldman Aff.”], Exhibit A). Claimant’s counsel (“counsel”) now seeks to withdraw from representation pursuant to CPLR 321 (b) (2) because of claimant’s failure to cooperate in the prosecution of this claim. Counsel also seeks a stay in this action for 60 days so that claimant may retain new representation if she so chooses; and an order granting costs and disbursements and fixing an attorney’s lien and/or granting quantum meruit in counsel’s favor as against any new representation claimant may retain.

This motion, returnable on February 9, 2000, was served by mail upon claimant and upon the attorney for defendants on January 11, 2000 (see, Goldman Aff., Exhibit E). Claimant has not responded to the motion and defendants take no position on it (see, Affirmation of Paula Pavlides, dated January 19, 2000 and filed January 24, 2000).

Counsel indicates that discovery is complete and the claim is ready for trial, but that claimant has failed to maintain contact with counsel’s office since July 1999. Counsel has persistently endeavored to contact claimant both at home and at her place of employment, having gone so far as to send an investigator to claimant’s residence and to confirm claimant’s address via the records of the United States Post Office.

Although a client may discharge an attorney without cause at any time in the relationship, there must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney-client relationship (see, People v Woods, 117 Misc 2d 1, 2). What constitutes good cause is not an objective determination, but rather lies within the sound discretion of the trial court (see, People v Salquerro, 107 Misc 2d 155). When a client’s conduct renders it unreasonably difficult for a lawyer to carry out representation correctly, courts have granted the lawyer permission to withdraw as attorney of record (see, Valente v Seiden, 244 AD2d 799; Cashdan v Cashdan, 243 AD2d 598; Damore v Helmsley, 157 AD2d 518; People v Woods, 117 Misc 2d 1, supra; Dones v State of New York, Ct Cl, unreported decision and order dated Feb. 28, 2000, Read, P.J., Claim No. 95547, Motion No. M-60070 [claimants’ attorney may withdraw when claimants’ failure to communicate with their attorney rendered it impossible for the attorney to prosecute the claim]; see also, Code of Professional Responsibility DR 2-110[C][1][d] [22 NYCRR 1200.15(c)[1][iv]).

Here, counsel has made repeated and earnest efforts to communicate with claimant. Moreover, counsel has satisfied the requirement of reasonable notice by mailing the motion papers to claimant’s last known address. Counsel has not, however, provided the Court with a copy of claimant’s retainer agreement or any indication as to the claimed value of services rendered.

Based on the foregoing, the Court finds that counsel has made a showing of good cause and reasonable notice; therefore, the Court grants counsel’s motion to the extent that counsel is directed to serve a filed copy of this decision and order upon claimant by certified mail, return receipt requested, and also by regular mail; and to file an affidavit of such service, with the returned receipt attached, with the Clerk of the Court. Upon the Clerk’s receipt of this affidavit, counsel shall be relieved from representation of claimant. No further proceedings shall take place with respect to this Claim until sixty (60) days after the clerk’s receipt of this affidavit.

Counsel’s request for an order fixing an attorney’s lien or other relief is denied without prejudice to whatever rights to compensation counsel may have pursuant to section 475 of the Judiciary Law or otherwise.

March 14, 2000
New York, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims