New York State Court of Claims

New York State Court of Claims

FERNANDEZ v. THE STATE OF NEW YORK, #2000-015-093, Claim No. 100304, Motion No. M-62178


Synopsis


Motion by claimant's attorney to withdraw as attorney of record granted upon showing of breakdown is attorney/client relationship.

Case Information

UID:
2000-015-093
Claimant(s):
WILLIAM FERNANDEZ, a/k/a JOSE FERNANDEZ and LUANNE JACOBS FERNANDEZ
Claimant short name:
FERNANDEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100304
Motion number(s):
M-62178
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Paul A. Shneyer, P.C.By: S. Tito Sinha, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 11, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of Paul A. Shneyer, P.C. for an order pursuant to CPLR 321 permitting him and his law firm to withdraw as attorneys of record for claimants and for a stay of proceedings for 30 days to allow claimants to obtain new counsel is granted. In a claim filed on May 7, 1999 claimant asserts causes of action for false arrest and imprisonment; malicious prosecution; violation of article 2, section 6 of the New York State Constitution; as well as a loss of consortium claim on behalf of Mrs. Fernandez. It is alleged that claimant was taken into custody upon a parole violation for not informing his parole officer of his contact with a law enforcement official. He asserts that he reported the contact by telephone and that it occurred because he was the victim of a crime.

Claimant's counsel brought this application by order to show cause seeking to be relieved as claimants' attorneys of record upon the contention that both claimants have failed to cooperate with their attorneys, claimant William Fernandez failed to appear for an EBT, claimants have failed to respond to letters and telephone calls, and failed to make themselves available to assist in preparing for litigation. Defense counsel has submitted an affirmation stating that the State takes no position with regard to this application to withdraw but expresses concerns over outstanding discovery and depositions which have not yet been conducted.

Prior to the Court's consideration of this motion the attorneys stipulated to extend the time for filing the note of issue to November 22, 2000 and the stipulation was "so ordered" by the Court on August 21, 2000.

A motion by an attorney to withdraw should be granted "upon a showing of irreconcilable differences between attorney and client" (Djeddah v Williams, 267 AD2d 156). Irreconcilable differences can arise from a disagreement between the attorney and the client with respect to the proper course to be pursued in the litigation as well as a lack of cooperation (Winters v Rise Steel Erection Corp., 231 AD2d 626). Here, the attorney's allegations are sufficient to show that claimants' unavailability and general lack of cooperation have caused a breakdown in the attorney/client relationship justifying the relief requested. The Court will stay all proceedings on this claim until November 10, 2000 to permit claimants to obtain new counsel (Welch Allyn v Vail Tool Co., 219 AD2d 824).


October 11, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order to show cause, undated;
  2. Affirmation of S. Tito Sinha dated July 28, 2000;
  3. Affirmation of Belinda A. Wagner dated August 16, 2000.