The following papers were read and considered on the motion by claimant's
counsel for an order permitting him to withdraw as claimant's representative:
Order to Show Cause, dated April 12, 2000 and filed April 24, 2000, with annexed
Affirmation of Andrew F. Plasse, Esq. ("Plasse Aff."); Letter of no opposition
from Michele M. Walls, Esq. AAG, dated April 27, 2000 and received May 1, 2000;
Letter from Andrew F. Plasse, dated May 3, 2000 and received May 5, 2000, with
annexed original certified mail, return receipt card.
Claimant Eric Hughes ("claimant") alleges that his foot was injured in June
1996 while he was using a lawnmower with a defective handle at Wallkill
Correctional Facility ("Wallkill"). A timely notice of intention was served on
the Attorney-General, and the claim was subsequently filed on January 5, 1998.
Trial was scheduled to commence on September 28, 1999, but was adjourned at the
request of claimant's counsel, who was encountering difficulties in contacting
claimant. Attorney Andrew F. Plasse has now moved, by way of an order to show
cause, for permission to withdraw as claimant's representative (CPLR 321 [b]
). The State does not oppose the motion.
According to counsel, he has been in contact with his client only once since
February 1998, when he sent a copy of defendant's discovery demands to claimant
at Wallkill. Claimant did not provide the needed information and did not
respond to any other letters his attorney sent to him in 1998.
A conference was scheduled for May 14, 1999, and while attempting to contact
his client prior to that conference, counsel learned for the first time that
claimant had been paroled. The conference was adjourned until June 10, 1999,
and through the Division of Parole, counsel was able to obtain an address for
claimant in Ohio.
In response to the letter that counsel sent to the Ohio address on June 2,
1999, claimant telephoned and spoke with his attorney. On June 9, 1999, copies
of the discovery demands were again sent to claimant, and on June 14, 1999,
claimant was informed that trial had been scheduled to commence on September 28,
1999. Claimant never responded to either of those communications or to a final
letter sent to him on September 21, 1999.
Once an attorney has undertaken to represent a client, his or her right to
withdraw is not absolute and "sound reason" must be given for the Court to
approve such a step (Matter of
, 193 AD2d 409, 410). There must also be reasonable notice to the client
(Matter of Williams v Lewis, 258 AD2d 974).
Here, claimant was served with the order to show cause by certified mail,
return receipt requested, sent to his last known address. This was the same
address to which counsel's letter of June 2, 1999, which reached claimant, had
been sent. The certified mail return receipt was signed by a "Sharon Hughes,"
further suggesting that the order reached claimant or at least members of his
family: because it is often impossible to do so, the withdrawing attorney is
not required to prove in every instance that notice was actually received by the
client ( Wong v Wong, 213 AD2d 399).
Where communications between attorney and client have irretrievably broken down
and all efforts by the attorney to communicate with the client have been
unsuccessful, the attorney may be allowed to withdraw (id.; Zelkha v
Ezati, 140 AD2d 338); therefore, the motion is granted and the Chief Clerk
is directed to amend the Court's records to reflect that claimant is, for the
time, appearing as his own representative.
Claimant will have sixty days in which to engage new counsel. If no attorney
has filed a notice of appearance within that time period, claimant shall file
and serve a Note of Issue and Certificate of Readiness within 90 days of receipt
of this order or be subject to dismissal of the claim, pursuant to CPLR 3216.
The Chief Clerk is directed to serve a copy of this order on claimant by both
certified mail, return receipt requested, and regular mail sent to his last
known address in Ohio.