New York State Court of Claims

New York State Court of Claims

AGOSTO v. THE STATE OF NEW YORK, #2000-016-022, Claim No. 85747, Motion Nos. M-61262, CM-61289


Motion of claimant's attorneys to withdraw as counsel was denied; cross-motion to dismiss for failure to prosecute granted.

Case Information

MICHAEL AGOSTO, formerly known as Michael Rivera
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Alan C. Marin
Claimant's attorney:
Jacoby & Meyers, L.L.P.Finkelstein, Levine, Gittelsohn & Partners, L.L.P, Of Counsel, By: Terry D. Horner, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet L. Polstein, AAG
Third-party defendant's attorney:

Signature date:
May 18, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The underlying claim of Michael Agosto is for unjust conviction and imprisonment pursuant to §8-b of the Court of Claims Act. Motion no. M-61262 is the motion of the law firm of Jacoby & Meyers, L.L.P. to withdraw as claimant's counsel. Cross-motion no. CM-61289 is defendant's cross-motion for an order dismissing the claim. In its papers, defendant lays out the history of delays that have occurred since the inception of this case almost eight years ago in 1992. Following four conferences on the case, the deadline for a note of issue was set for February 1, 1997. See ¶6 of the February 24, 2000 affirmation of Janet L. Polstein (the "Polstein Aff."). That deadline passed and a fifth conference was held on February 5, 1998, at which an order was issued in which the note of issue deadline was re-set for June 15, 1998. See Polstein Aff. ¶7 and Exhibit D thereto. The deadline was breached again and in fact, more than a year and a half passed with no communication to the Court.

On January 7, 2000, the Court sent a letter to counsel for both parties indicating that no note of issue had been filed pursuant to the Court's order, nor had any other correspondence been received. The letter indicated that if there was no communication from counsel within 30 days, the claim would be dismissed. The letter was returned to the Court from the United States Postal Service, as Jacoby & Meyers' offices were apparently no longer at the address they had supplied to the Court. Several telephone calls were then made from the Court to Jacoby & Meyers' offices to advise them of the contents of the Court's letter. Shortly thereafter, Jacoby & Meyers filed its motion to withdraw.

Jacoby & Meyers does not explain its delays in prosecuting this case. Moreover, the only ground for Jacoby & Meyers' motion to withdraw is the cryptic statement that it and claimant "are unable to agree on the further prosecution" of the case. See p. 2 of the February 17, 2000 affirmation of Terry D. Horner. Such does not make out a showing of good and sufficient cause for the withdrawal of counsel. See, e.g., Matter of Benjamin, 129 AD2d 886, 514 NYS2d 526 (3d Dept 1987), lv denied 70 NY2d 666, 518 NYS2d 959; Mambrino v State of New York, 30 Misc 2d 990, 221 NYS2d 643 (Ct Cl 1961); 2 Weinstein-Korn-Miller, NY Civ Prac ¶321.13.
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In consideration of the foregoing[1], IT IS ORDERED that pursuant to §19 of the Court of Claims Act, cross-motion CM- 61289 is granted and claimant Michael Agosto's claim is dismissed for failure to prosecute. IT IS FURTHER ORDERED that Jacoby & Meyers' motion M-61262 to withdraw is denied without prejudice.

In addition, I would not rule out reopening this claim should claimant, either pro se or through an attorney, communicate with the Court and make an appropriate showing that the case will be actively pursued.

May 18, 2000
New York, New York

Judge of the Court of Claims

  1. [1]Along with the pleadings, the Court reviewed Jacoby & Meyers' notice of motion with supporting affirmation and Exhibit A; defendant's notice of cross-motion with supporting affirmation and Exhibits A-E; and Jacoby & Meyers' affirmation in opposition and reply.