New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2001-015-178, Claim No. 102689, Motion No. M-63730


Synopsis


Law firm seeking to withdraw as attorney of record failed to serve client as directed in order to show cause and failed to demonstrate irreconcilable breakdown in attorney/client relationship.

Case Information

UID:
2001-015-178
Claimant(s):
MILTON GORDON The caption of this action was amended by order of this Court dated October 24, 2000 to reflect the only properly named defendant.
Claimant short name:
GORDON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action was amended by order of this Court dated October 24, 2000 to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102689
Motion number(s):
M-63730
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Alan Ross, P.C.By: Valeria Deyeso, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 12, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause signed by this court on June 11, 2001 the claimant's attorney of record, Alan Ross, P.C. sought an order to be relieved as claimant's attorney in this matter pursuant to CPLR 321 (b). Claimant, by letter dated July 11, 2001 opposed the motion. The motion is hereby denied. 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, Matter of Dunn, 205 NY 398, 403; Lake v M.P.C. Trucking, 279 AD2d 813; Code of Professional Responsibility DR 2-110 [22 NYCRR § 1200.15]); People v Woods, 117 Misc 2d 1, 2). The court is not satisfied from the affidavit of service submitted on the motion that claimant received reasonable notification of counsel's application to withdraw since service did not comply with the method ordered by the court.

First, with regard to notice, the court directed personal service of the order to show cause upon the claimant on or before July 6, 2001. The affidavit of service upon Milton Gordon filed with the court merely indicates service on him by regular mail at 511 Willoughby Street, Apartment #3, Brooklyn, New York 11206. Such service, even if completed, was not in compliance with the Court's order.

Additionally, the affirmation[1] of Valeria Deyeso, in support of the motion, does not set forth factual allegations tending to prove that good cause exists to permit the law firm's withdrawal. While the determination of good cause lies within the Court's discretion (People v Salquerro, 107 Misc 2d 155) it is incumbent upon the moving party to demonstrate that the underlying action is without merit, there has been a breakdown in the attorney/client relationship or that irreconcilable differences have arisen which would make it unreasonably difficult, if not impossible, for the attorney to carry out his/her employment effectively (Valente v Seiden, 244 AD2d 799, 800; Ashker v International Bus. Machs. Corp., 201 AD2d 765; see, Code of Professional Responsibility DR 2 -110 [c][1][a] [22 NYCRR § 1200.15 (c)(1)(i)] and DR 2-110 [c][1][d] [22 NYCRR § 1200.15 (c) (1) (iv)]). No such showing has been made here and, accordingly, the motion to be relieved is denied.

Defendant's motion for summary judgment previously adjourned to September 5, 2001 is hereby further adjourned to October 17, 2001.

September 12, 2001
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 dated June 11, 2001;
  1. "Affidavit" [Affirmation] of Valeria Deyeso dated June 11, 2001, with exhibits;
3 Letter from Milton Gordon dated July 11, 2001.

[1]Improperly labeled an affidavit.