New York State Court of Claims

New York State Court of Claims

SAWYER v. THE STATE OF NEW YORK, #2000-004-502, Claim No. 99941, Motion No. M-60885


Synopsis


Claimants' counsel's motion for leave to withdraw as counsel is granted.

Case Information

UID:
2000-004-502
Claimant(s):
CHARLES SAWYER and DENISE SAWYER, Individually and as Administrators of the Estate of CHARLES S. SAWYER, IV.
Claimant short name:
SAWYER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99941
Motion number(s):
M-60885
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
HARTSFIELD & McFARLANE VAUGHNBY: Yasmin McFarlane Vaughn, Esq., of Counsel
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: EARL F. GIALANELLA, Assistant Attorney General, of Counsel
Third-party defendant's attorney:

Signature date:
April 11, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is a motion by the attorneys for the Claimants, brought on by an Order to Show


Cause (Paper No. 2), for an order permitting withdrawal as counsel for the Claimants


pursuant to CPLR § 321 (b) (2).



The following papers are before the Court:

Claim, filed March 8, 1999 1

Order To Show Cause, filed December 17, 1999 2


Affirmation of Yasmin McFarlane Vaughn, Esq., with
attached exhibits, in support of Motion, dated November 23, 1999 3


Affidavit of Service of Order to Show Cause on Claimants,
sworn to December 17, 1999 4




Claimants' counsel affirms, in pertinent part:

2. I make this affirmation in support of affirmant's motion to withdraw as counsel for the claimants, CHARLES SAWYER and DENISE SAWYER.

3. This action was commenced by Notice of Intention to Make Claim against the State of New York for wrongful death and conscious pain and suffering. Said Notice was received by the state on November 18, 1999.

4. The Claim for wrongful death was served upon the Attorney General on February 16, 1999. The defendant answered on March 24, 1999.

5. On March 8, 1999, affirmant filed a Notice of Motion to file a late notice of claim to assert a cause of action on behalf of the decedent for conscious pain and suffering.

6. On June 23, 1999, the defendant cross moved to dismiss claimant's motion to file a late notice of claim.

***

8. On September 27, 1999, the Court decided the motion on the merits of the claim to file a late notice of claim to assert a cause of action for conscious pain and suffering on behalf of the decedent.

9. The Court granted defendant's cross motion and dismissed the claim for conscious pain and suffering. In sum and substance stated that the claimants failed to factually outline how the State breached any duty to the decedent. That it is clear that the decedent being 19 at the time of drowning, was an adult, and as an adult, is presumed to know of the dangers posed by swimming. The court further indicated that the State did not make a motion to dismiss the claim in its entirety (Exhibit I).

10. Upon receiving the court's decision, I met with my clients on October 27 and reviewed the Court's order with them. I indicated that if the court found no merit to the claim for conscious pain and suffering, the court will undoubtedly find no merit to the claim for wrongful death. On November 22, I confirmed this conversation in writing with them.

11. I further indicted [sic] to my clients, that given the decision of the court, my office could no longer proceed to litigate this claim. The claimants indicated that they were not prepared to discontinue this action and will be seeking new counsel to represent them.

(Paper No. 3 [emphasis in original )



Claimants, though served (Paper No. 4), have not opposed the application.



In light of the foregoing, it is



ORDERED that Claimants' counsel's Motion No. M-60885 for leave to withdraw as counsel is GRANTED and Claimants' counsel is directed to serve a copy of this Decision and Order by certified mail, return receipt requested, upon Claimants at their last known address as set forth in the Order to Show Cause, and upon the New York State Attorney General, proof of which is to be filed with the Clerk of the Court, this Decision and Order to be effective as of the date of such filing. Since Claimants may retain "new counsel" (Paper No. 3, ¶ 11) all further proceedings in the Claim are stayed until May 31, 2000.


April 11, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims