New York State Court of Claims

New York State Court of Claims

D'ANTONIO v. THE STATE OF NEW YORK, #2001-015-176, Claim No. 102651, Motion No. M-63662


Motion by claimant's attorney to withdraw as counsel on ground of irreconcilable differences granted.

Case Information

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):

Francis T. Collins
Claimant's attorney:
John P. Kingsley, P.C.By: Denise Frenia Esslie, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of John P. Kingsley, P.C. for an order pursuant to CPLR § 321 permitting its withdrawal as attorney of record for claimant on the basis of irreconcilable differences is granted. In the claim filed June 26, 2000 claimant alleges causes of action for false arrest and imprisonment, assault and battery and negligence on the part of the New York State Police in connection with her arrest on July 27, 1999 outside Nick's Restaurant in the Town of Cairo, Greene County.

Counsel for claimant, by order to show cause signed by this Court, now moves to withdraw pursuant to CPLR § 321 (b)(2) upon the premise that claimant has failed to communicate with counsel regarding their respective views of the case and claimant has refused to follow counsel's recommendation regarding the course of action to be taken. Defendant takes no position on the instant application for permission to withdraw. Claimant has not responded to the motion despite proof of court ordered service upon her pursuant to CPLR § 308.

Although a client may discharge an attorney without cause at any time, there must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney/client relationship (see, Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929; People v Woods, 117 Misc 2d 1, 2). The Court is satisfied from the affidavit of service submitted on the motion that claimant received reasonable notification of counsel's application to withdraw. The determination of good cause is not an objective one but rather lies within the court's sound discretion (People v Salquerro, 107 Misc 2d 155). Irreconcilable differences between an attorney and client regarding the proper course of action to be pursued in litigation and a client's lack of cooperation as alleged in the instant motion have been recognized as sufficient cause to support an application by counsel to be relieved of his duty of representation (see, Winters v Rise Steel Erection Corp., 231 AD2d 626; Lake v M.P.C. Trucking, 279 AD2d 813; see also, Valente v Seiden, 244 AD2d 799).

Claimant's counsel has demonstrated a breakdown in the attorney/client relationship such as to justify the relief requested. Consequently, it is ORDERED that:

1. Permission to withdraw as attorney of record pursuant to CPLR § 321 (b) is hereby granted to John P. Kingsley, P.C. Claimant's counsel shall serve upon the claimant a file-stamped copy of this decision and order by personal delivery or by certified mail, return receipt requested, at her last known address and upon the State of New York by regular mail; and

2. Claimant's counsel shall file an affidavit of such service, with the return receipt attached, if served other than by personal delivery with the Clerk of the Court. Upon the Clerk's receipt of this affidavit, counsel shall be relieved from representation of the claimant; and

3. Claimant herself shall, within 60 days of service upon her of a file-stamped copy of this decision and order, notify the Clerk of the Court and the State of New York in writing of her intention to proceed pro se, or file a notice of appearance by a new attorney.

September 6, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause filed June 25, 2001;
  2. Affirmation of Denise Frenia Esslie dated May 29, 2001;
  3. Letter dated June 29, 2001 from Dennis M. Acton;
  4. Affidavit of service filed July 2, 2001.