New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2001-015-212, Claim No. 102689, Motion No. M-64231


Court granted motion of claimant's attorney to be relieved as counsel based upon irreconcilable differences in relationship with claimant

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):

Claimant's attorney:
Alan Ross, P.C.By: Alan Ross, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 17, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


By order to show cause signed by this court on October 19, 2001 the claimant's attorney of record, Alan Ross, P.C. seeks an order to be relieved as claimant's attorney in this matter pursuant to CPLR 321 (b). Claimant has not opposed the motion which is granted as provided below. This is the second such motion made in this action. The prior motion (M-63730) was denied by decision and order dated September 12, 2001 based in part upon counsel's failure to comply with the Court's directions regarding service of the order to show cause. 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 satisfied from the affidavit of service submitted on the motion that claimant received reasonable notification of counsel's application to withdraw.

The affirmation of Alan Ross in support of the motion sets 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)]). The movant has met its burden and, accordingly, the motion to be relieved is granted.

Defendant's motion for summary judgment previously adjourned to October 17, 2001 is further adjourned to February 20, 2002.

IT IS ORDERED that the withdrawing attorney personally serve a copy of the instant decision and order with notice of entry upon Milton Gordon on or before December 31, 2001 and file proof of such service with the Clerk of the Court. Milton Gordon shall have 45 days following service of the decision and order upon him to either oppose the pending summary judgment motion on a pro se basis or inform the Court of the name and address of an attorney retained to represent him on this claim. If claimant obtains the services of a new attorney such attorney will be granted a reasonable additional period of time to oppose the motion.

December 17, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

1. Order to show cause dated October 19, 2001;
  1. "Affidavit" [Affirmation] of Alan Ross dated October 5, 2001, with exhibits;