New York State Court of Claims

New York State Court of Claims

HUGHES v. THE STATE OF NEW YORK, #2000-001-016, Claim No. 97596, Motion No. M-61574


Synopsis


Motion by claimant's counsel for an order permitting him to withdraw as claimant's representative is granted.

Case Information

UID:
2000-001-016
Claimant(s):
ERIC HUGHES
Claimant short name:
HUGHES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97596
Motion number(s):
M-61574
Cross-motion number(s):

Judge:
susan phillips read
Claimant's attorney:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michele M. Walls, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 24, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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] [2]). 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

Jamieko A.
, 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.

May 24, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims