New York State Court of Claims

New York State Court of Claims

ACCIME v. THE STATE OF NEW YORK, #2001-019-545, Claim No. 98888, Motion No. M-63319


Counsel's motion to withdraw as counsel is denied without prejudice to a further application for the same relief upon proper papers.

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:
& SCHWARTZ, LLPBY: Thomas P. O'Malley, Esq., of counsel
Defendant's attorney:
BY: Gwendolyn Hatcher, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, Thomas P. O'Malley, Esq., of Oshman, Helfenstein, Bernstein, Mirisola & Schwartz, LLP, 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 August 31, 1998.
  2. Order to Show Cause, Motion No. M-63319, dated March 20, 2001, and filed March 30, 2001.
  3. Affirmation of Thomas P. O'Malley, Esq., in support of Order to Show Cause, dated March 14, 2001, with attached exhibits.
  4. Affirmation of Thomas P. O'Malley, Esq., sent directly to Court for in camera review, with attached exhibits.
  5. Affirmation of Gwendolyn Hatcher, AAG, in response to Order to Show Cause, dated May 9, 2001, and filed May 14, 2001.
This Claim alleges that Claimant received inadequate and/or improper prenatal care at the University Hospital of Brooklyn (hereinafter "Downstate") resulting in severe injuries including paralysis.

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, counsel has filed an affidavit of service sworn to March 27, 2001 purporting to establish proper and timely service upon Claimant of the Order to Show Cause with supporting papers. However, in this Court's view, said affidavit of service is inadequate. When the Court orders service via certified mail, return receipt requested, there are two items that can establish proper service, namely the signed "green card" and a stamped "certified mail receipt". By way of this proof, the Court insures that the documents were delivered to the address in question. Here, the affidavit of service failed to attach either the signed "green card" or a stamped "certified mail receipt". Although counsel need not prove that notice was actually received by the client in every case (Wong v Wong, 213 AD2d 399), proof of delivery is a necessity. Without the accompanying green card or stamped certified mail receipt this Court cannot ascertain whether or not counsel ever mailed these documents in the manner directed or that they were received at Claimant's last known address. (Baird v State of New York, Ct Cl, November 19, 1993, Corbett, Jr., Claim No. 87372, Motion No. M-48111). As such, this Court finds that counsel has failed to establish that Claimant received reasonable notification of the instant application.

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, 159). Here, counsel's original affirmation indicates that his "[r]elationship with the plaintiff has been strained and as such we can no longer act as her attorneys." (Affirmation of Thomas P. O'Malley, Esq., ¶ 9). Part of counsel's complaint is his client's failure to keep in touch. More specifically, counsel's filed affirmation avers, in part:
[w]e have attempted by correspondence, as well as through numerous telephone calls to discuss with the plaintiff our intentions to be relieved as counsel. To date, plaintiff has not responded. It is respectfully requested that a copy of the aforementioned letter may be viewed by the Court in camera.

(Affirmation of Thomas P. O'Malley, Esq., ¶ 12). The Court will not address the substantive nature of the referenced correspondences in order to preserve the attorney-client privilege, but the Court notes their relevance on the issue of Claimant's purported failure to communicate. Communication between counsel and a client is a two-way street. Here, counsel submits four letters sent to his client over the past year dated June 7, 2000, January 5, 2001, January 17, 2001 and March 7, 2001, as well as a vague reference to "numerous phone calls". (Affirmation of Thomas P. O'Malley, Esq., ¶ 12). In this Court's view, such limited attempts do not qualify as a genuine attempt by counsel to maintain contact with his client. (Compare Eastmond v State of New York and City Univ. of N. Y., Ct Cl., March 14, 2000, Read, P.J., Claim No. 093412; Motion No. M-61049 ["counsel has persistently endeavored to contact claimant both at home and at her place of employment, having gone so far as to send an investigator to claimant's residence and to confirm claimant's address via the records of the United States Post Office"]). Moreover, with respect to these four letters counsel has once again failed to attach a signed green card or stamped receipt establishing that the letters were ever delivered to the subject address. As such, the Court can not categorically conclude that Claimant repeatedly failed to respond to her counsel and finds that counsel has failed to make the requisite showing of good cause.

Based upon the foregoing, the Court finds that counsel has failed to make a showing of good and sufficient cause for withdrawal upon reasonable notice to Claimant. 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 without prejudice to a further application for the same relief upon proper papers. Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the Claimant by personal service, as well as by regular mail at her last known address, and upon the State of New York by regular mail; and

2. Claimant's counsel shall file in the Office of the Clerk of the Court an affidavit of service establishing service on Claimant in accordance with the foregoing.

July 19, 2001
Binghamton, New York

Judge of the Court of Claims