New York State Court of Claims

New York State Court of Claims

SANTULLI v. THE STATE OF NEW YORK, #2001-019-543, Claim No. 99895, Motion No. M-63306


Counsel's motion to withdraw as counsel is denied.

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:
FUCHSBERG & FUCHSBERGBY: John C. Henninger, Esq., of counsel
Defendant's attorney:
BY: Nancy Hornstein, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, John C. Henninger, 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 State of New York (hereinafter "State") 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 March 1, 1999.
  2. Order to Show Cause, Motion No. M-63306, dated March 19, 2001, and filed March 23, 2001.
  3. Affirmation of John C. Henninger, Esq., in support of Order to Show Cause, dated January 24, 2001, with attached exhibits.
  4. Affirmation of John C. Henninger, Esq., in support of Order to Show Cause, dated February 26, 2001, submitted to the Court for "in camera" review.
  5. Affirmation of Nancy Hornstein, AAG, dated March 28, 2001, and filed March 30, 2001.
The Claim alleges that Claimant was a patient at the Kingsboro Psychiatric Center on September 19, 1998 when he was injured by an employee thereof who was in the course of breaking up an altercation between two other patients. A Notice of Intention was served on the Office of the Attorney General on November 12, 1998. The Claim was filed on March 1, 1999 and served upon the Attorney General's office on that same date. Thereafter, it appears that the parties completed some discovery. On March 19, 2001, this Court signed an Order to Show Cause submitted by Claimant's counsel seeking permission to withdraw as attorney of record.

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, this Court's Order to Show Cause directed counsel to serve Claimant with these motion papers by certified mail, return receipt requested, at his current address at Federal Correctional Institution, Federal Medical Center, P.O. Box 1500, Butner, North Carolina 27509-1500. As previously noted, Claimant has not responded to this motion. Counsel has filed an affidavit of service in the Office of the Clerk establishing service upon Claimant pursuant to said Order to Show Cause.

With respect to the second element, 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's original affirmation cited the parties "irreconcilable differences" and requested permission to submit an in camera affirmation detailing those differences so as not to reveal any privileged information to the State. The Court has conducted an in camera review of counsel's supplemental affirmation and does not question the concerns raised by counsel therein. Nevertheless, the Court is reluctant to permit this withdrawal. More specifically, this Court has a greater concern about Claimant's ability to understand these proceedings and the practical obstacles that he would face in attempting to secure new counsel or in proceeding as a pro se litigant in light of his current out of state residence and mental health background.[1] In balancing the concerns of counsel with the potential obstacles faced by this particular Claimant if withdrawal were permitted, this Court will exercise its discretion to deny counsel's application for withdrawal. (Winters v Rise Steel Erection Corp., 231 AD2d 626; Sansiviero v Sanders, 117 AD2d 794, lv dismissed, 68 NY2d 805).

Consequently, it is ORDERED that:

1. Claimant's counsel's motion to withdraw as attorney of record pursuant to CPLR 321 (b) (2) is DENIED. Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the Claimant by certified mail, return receipt requested, and regular mail at his last known address, as well as upon the State of New York by regular mail; and

2. Claimant's counsel shall file an affidavit of such service of this Decision & Order, with a copy of the returned receipt attached, in the Office of the Clerk of the Court.

July 9, 2001
Binghamton, New York

Judge of the Court of Claims

[1]It is unclear whether Claimant is being housed in the mental health unit at the Federal Correctional Institution.