New York State Court of Claims

New York State Court of Claims

FIELDS v. THE STATE OF NEW YORK, #2000-001-052, Claim No. 94389, Motion No. M-62147


Synopsis


The motion by claimant's attorney to withdraw as counsel pursuant to CPLR 321 (b) (2) is granted

Case Information

UID:
2000-001-052
Claimant(s):
MELINDA FIELDS, as Mother and Natural Guardian of the infant Plaintiff, RAKIM RICHARDSON, and MELINDA FIELDS, Individually
Claimant short name:
FIELDS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The original claim names "The State of New York" and "University Hospital of Brooklyn State University of New York Health Science Center at Brooklyn" as defendants. The Court of Claims has no jurisdiction to hear claims against defendants other than the State of New York and certain other entities specified by statute; therefore, the Court sua sponte has amended the caption to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
94389
Motion number(s):
M-62147
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Levine and GrossmanBy: Stacey Haskel, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Katharine Brooks, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 13, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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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: Order to Show Cause, dated July 14 and filed August 7, 2000; Affirmation of Stacey Haskel, affirmed July 5 and filed August 7, 2000; the claim, dated June 28 and filed July 19, 1996; and an in-camera telephone conference with counsel for claimant, conducted on August 29, 2000.

This medical malpractice claim was filed on July 19, 1996, primarily alleging that personnel at the State University Health Science Center at Brooklyn's hospital failed to diagnose and subsequently to treat claimant's infant son's bilateral inguinal hernia resulting in, inter alia, the loss of the infant's left testicle (claim, ¶¶ 2-4). A Note of Issue was originally set to be filed by October 27, 1999, but this date was extended until June 27, 2000. The Note of Issue was not filed by this deadline.

Counsel for claimant, by Order to Show Cause signed by this Court, now moves to withdraw as counsel for claimant pursuant to CPLR 321 (b) (2) on account of an apparent breakdown between claimant and counsel regarding their respective views of the case and a consequent difference of opinion over the course of action to be taken (Affirmation of Stacey Haskel, affirmed July 5 and filed August 7, 2000 ["Haskel Aff."], ¶ 6; in camera telephone conference with counsel for claimant, conducted on August 29, 2000 ["in-camera conf."]). Counsel also indicates that she has been unable to discuss the matter with claimant despite repeated efforts to do so (Haskel Aff., ¶ 7; in-camera conf.); and informs the Court that she has already been relieved as counsel for claimant in a parallel action in the Supreme Court of Kings County (in-camera conf.). Counsel also seeks a stay in this action so that claimant may retain new representation if she chooses to do so. Claimant has not responded to this motion. 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, J. M. Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; People v Woods, 117 Misc 2d 1, 2; see also, 22 NYCRR 1200.15 [c] [6]). 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; Eastmond v State of New York, Ct Cl, unreported decision filed March 23, 2000, Read, P.J., Claim No. 93412, Motion No. M-61049).

Here, claimant has been notified of counsel's intent to withdraw. Her failure to respond to the motion lends credence to counsel's averment that she has been unable to obtain claimant's cooperation.

Based on the foregoing, the Court finds that claimant has made a showing of reasonable notice and good cause, particularly in light of the lack of communication between claimant and counsel and their apparent "irreconcilable differences * * * with respect to the proper course to be pursued by counsel in this litigation" (Sansiviero v Sanders, 117 AD2d 794, 795, lv dismissed, 68 NY2d 805; see, Winters v Rise Steel Erection Corp., 231 AD2d 626); therefore, the Court grants counsel's motion. The Court directs counsel 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 return 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.


September 13, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims