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
Claim, filed December 21, 1999.
"In camera" telephone conference with counsel for Claimant with Court conducted
on February 22, 2001.
Notice of Motion No. M-63193, dated March 5, 2001, and filed March 8,
Affirmation of Allen S. Gold, Esq., in support of motion, dated March 5,
Letter from James E. Shoemaker, AAG to Court, dated and received March 21,
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] ; 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
), 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
(Winters v Rise Steel Erection
., 231 AD2d 626; Sansiviero v Sanders
, 117 AD2d 794, lv
, 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] §
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
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.