New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2001-019-525, Claim No. 101645, Motion No. M-63193


Counsel's motion to withdraw as counsel is 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):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 23, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, Allen S. Gold, Esq., moves to withdraw as attorney of record for Claimant pursuant to CPLR 321 (b) (2) because of irreconcilable differences with his client with respect to the proper course to be pursued in this matter. Defendant takes no position on the instant application for permission to withdraw. Claimant has not responded to this motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed December 21, 1999.
  2. "In camera" telephone conference with counsel for Claimant with Court conducted on February 22, 2001.
  3. Notice of Motion No. M-63193, dated March 5, 2001, and filed March 8, 2001.
  4. Affirmation of Allen S. Gold, Esq., in support of motion, dated March 5, 2001.
  5. Letter from James E. Shoemaker, AAG to Court, dated and received March 21, 2001.
  6. Affirmation of Allen S. Gold, Esq., in support of motion, dated April 16, 2001, and received by the Court on April 20, 2001, for "in camera" review.

This Claim arose on July 12, 1999, when Claimant, an inmate, allegedly slipped and fell in the shower area while incarcerated at Woodbourne Correctional Facility due to the negligence of the State of New York.

It is well-settled that an attorney who has agreed to represent a client may not withdraw from such representation upon the asking, but rather must obtain Court approval. (CPLR 321 [b] [2]; Matter of Jamieko A., 193 AD2d 409, 410). In reviewing the request, a Court should measure the attorney's request to terminate the attorney-client relationship against the well-settled standard of establishing "[a] good and sufficient cause and upon reasonable notice." (Matter of Dunn, 205 NY 398, 403; emphasis added; see also, Disciplinary Rules of the Code of Professional Responsibility DR 2-110 [22 NYCRR 1200.15]). With respect to the issue of reasonable notice, the Court has not received any response from Claimant relative to this motion. However, on the basis of the affidavit of service showing mailing of these motion papers to Claimant, the Court concludes that Claimant received reasonable notification of the instant application.

The requisite showing of good cause has been described not as an objective determination, but rather as being within the sound discretion of the trial court. (People v Salquerro (Albaracon), 107 Misc 2d 155). Here, counsel outlined the relevant history between counsel and client in greater detail in both an in camera telephone conference with the court and in an affirmation submitted for in camera inspection. In this Court's view, counsel related facts which create irreconcilable differences between the attorney and client with respect to the proper course to be pursued in the litigation.[1] (Winters v Rise Steel Erection Corp., 231 AD2d 626; Sansiviero v Sanders, 117 AD2d 794, lv dismissed, 68 NY2d 805). Moreover, counsel has made a showing that this history will prevent him from representing claimant in accordance with his professional obligations. (Uniform Rules for Trial Cts [22 NYCRR] § 1200.32)

Based upon the foregoing, the Court finds that counsel has made a showing of good and sufficient cause for withdrawal upon reasonable notice to Claimant. Consequently, it is ORDERED that:

1. Claimant's counsel is permitted to withdraw as attorney of record pursuant to CPLR 321 (b). Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the Claimant by regular mail and certified mail, return receipt requested, at his 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 returned receipt attached, with the Clerk of the Court. Upon the Clerk's receipt of this affidavit, counsel shall be relieved from representation of Claimant.

3. Claimant shall, within 60 days of service upon him of a file-stamped copy of this Decision & Order, notify the Clerk of the Court and the State of New York in writing of his intention to proceed pro se, or file a notice of appearance by a new attorney; and

4. If Claimant fails to appear pro se or by new counsel within the said 60 day period, the Claim herein will be deemed dismissed for his default (22 NYCRR 206.15), and no further order of this Court will be required.

April 23, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Court does not review counsel's affirmation with an eye toward an ultimate determination of the merits of this case, rather counsel's representations are used solely for the purpose of evaluating the attorney-client relationship in this matter. In short, this Court takes no position with regard to the merit of this claim.