New York State Court of Claims

New York State Court of Claims

HARDING v. THE STATE OF NEW YORK, #2001-009-003, Claim No. 97807, Motion No. M-62606


Synopsis


The application of claimant's attorney to be relieved from representation was granted.

Case Information

UID:
2001-009-003
Claimant(s):
KENNETH HARDING
Claimant short name:
HARDING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97807
Motion number(s):
M-62606
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
ROBERT PREVITO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 7, 2001
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Order to Show Cause, claimant's attorney seeks an order permitting him to withdraw as attorney for claimant.

The following papers were considered by the Court in connection with this motion:
Order to Show Cause, Affirmation in Support 1,2


Letter dated October 3, 2000 from Claimant 3


Letter dated October 24, 2000 from Claimant 4


Letter dated November 2, 2000 from Claimant 5

Letter dated October 27, 2000 from Patricia M. Bordonaro, Esq, Assistant Attorney General 6

This claim, upon due notice provided to counsel for the parties, was originally scheduled for a trial on liability to commence on June 12, 2000. Prior to trial, claimant's counsel requested and was granted an adjournment, and the trial was rescheduled to commence on October 25, 2000. Shortly before this rescheduled trial date, claimant's counsel submitted the within order to show cause to the Court requesting to be relieved from representation of claimant in this matter.

As the basis for this application, claimant's counsel states in his affirmation that he has attempted, for a period in excess of two years, to obtain funds from claimant in order to retain a medical expert. Claimant's counsel maintains that expert medical testimony at trial is essential if claimant hopes to establish liability against the State. Since claimant has not provided the necessary funds, claimant's counsel contends that a trial on liability would be fruitless, and could possibly leave himself open to a claim of legal malpractice. He therefore wishes to be relieved from any further representation of claimant.

In the various pieces of correspondence provided by claimant to the Court, claimant contends that his counsel agreed to provide the necessary funds to retain a medical expert, which funds would then be reimbursed to claimant's counsel out of any award made by the Court. He therefore argues that his counsel should not be relieved, and that his attorney should be compelled by the Court to procure the necessary medical expert witness.

Based upon a review of the papers submitted to the Court in connection with this application, the Court does not find any express agreement by which claimant's counsel agreed to provide funds to retain a medical expert. To the contrary, the correspondence between claimant and his counsel (see Exhibits to Items 1, 2) uniformly indicate that claimant was attempting to make arrangements with relatives to provide the necessary money.

Based on the above, and all of the papers submitted herein, the Court finds that the conflict which has arisen between claimant and his counsel establishes adequate grounds for this Court to relieve counsel from any further representation of claimant.

Accordingly, the application of attorney Robert Previto to be relieved from representation of the claimant in this claim is hereby granted, to the extent provided herein, and it is

ORDERED, that claimant's attorney is directed to serve a file-stamped copy of this Order upon claimant by certified mail, return receipt requested, and by regular mail, and to file the original affidavit of service, with the signed return receipt attached, with the Clerk of the Court; and it is further

ORDERED, that a copy of the filed Order shall also be mailed to the Attorney General by regular mail, and an original affidavit of such service shall be filed with the Clerk of the Court; and it is further

ORDERED, that upon the Clerk's receipt of these affidavits of service, counsel shall be relieved from representation of the claimant, and claimant shall be considered pro se unless another attorney appears on his behalf; and it is further

ORDERED, that all proceedings in this matter are stayed for a period of 30 days from the date of filing of this Order.


February 7, 2001
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims