New York State Court of Claims

New York State Court of Claims

NOLEN v. THE STATE OF NEW YORK, #2001-019-568, Claim No. NONE, Motion No. M-63774


Synopsis


Counsel's motion to withdraw as counsel is granted.


Case Information

UID:
2001-019-568
Claimant(s):
WALLACE S. NOLEN
Claimant short name:
NOLEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-63774
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
LAMA LAW FIRM, LLPBY: Luciano L. Lama, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 24, 2001
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant's counsel, Luciano L. Lama, Esq., on behalf of the Lama Law Firm, LLP, moves to withdraw as attorney of record for Claimant pursuant to CPLR 321 (b) (2) alleging that the relationship between Claimant and his attorneys has deteriorated to the point where further representation is inappropriate. Defendant State of New York (hereinafter "State") takes no position on the instant application. Claimant has submitted a response to this motion indicating his objection to counsel's withdrawal.


The Court has considered the following papers in connection with this motion:
  1. DECISION & ORDER, Lebous, J., Claim No. 102652, Motion Nos. M-62396 & CM-62553, filed December 15, 2000.
  2. DECISION & ORDER, Lebous, J., Claim No. 103798, Motion No. M-63399, filed May 25, 2001.
  3. ORDER TO SHOW CAUSE, Motion No. M-63774, filed July 16, 2001.
  4. Affirmation of Luciano L. Lama, Esq., in support of motion, dated May 7, 2001, and filed July 16, 2001, with attached exhibits.
  5. Affirmation of Ciano J. Lama, Esq., in support of motion undated.
  6. Affidavit of Amanda Nagle, in support of motion, sworn to August 8, 2001.
  7. Affidavit of Nilofer Ahmad, in support of motion, sworn to August 7, 2001.
  8. Affidavit of Catherine S. Lama, in support of motion, sworn to May 7, 2001.
  9. Supplemental Affirmation of Ciano J. Lama, Esq., in support of motion, dated June 4, 2001, and filed July 16, 2001, with attachment.
  10. Supplemental Affirmation of Ciano J. Lama, Esq., in support of motion, dated June 5, 2001, and filed July 16, 2001, with attachment.
  11. Supplemental Affirmation of Ciano J. Lama, Esq., in support of motion, dated June 7, 2001, and unfiled, with attachment.
  12. Supplemental Affirmation of Ciano J. Lama, Esq., in support of motion, dated July 10, 2001, unfiled, with attached exhibit.
  13. Letter from James E. Shoemaker, AAG to Court, dated July 30, 2001 and received July 31, 2001, taking no position to motion.
  14. "VERIFIED ANSWER TO MOTION", of Wallace S. Nolen, in opposition to motion, dated August 27, 2001 and unfiled, with attachment.
Some background will be useful before proceeding to the merits of the instant application. A Claim was filed on June 26, 2000 and assigned No. 102652 wherein Claimant alleged he was injured as the result of three incidents during his incarceration at State Correctional Facilities. The State moved to dismiss Claim No. 102652 for failure to comply with Court of Claims Act (hereinafter "CCA") 10 and 11. In a Decision & Order filed December 15, 2000 (hereinafter "Decision #1"), this Court granted the State's motion to dismiss Claim No. 102652, while granting Claimant's cross-motion for permission to file a late claim relative to one of the three alleged incidents. (Nolen v State of New York, Ct Cl., December 15, 2000, Lebous, J., Claim No. 102652, Motion No. M-62396, Cross-Motion No. CM-62553). Claimant was given 60 days from the filing of Decision #1 to serve and file the permitted claim which date was February 13, 2001. (Id., at 3). The permitted Claim was filed in the Office of the Clerk on February 9, 2001 and assigned Claim No. 103798 but was served on the Office of the Attorney General on March 9, 2001. The State moved to dismiss Claim No. 103798 due to Claimant's failure to serve the permitted Claim within the 60 day time period set forth in Decision #1. The Court dismissed Claim No. 103798 but amended Decision #1, sua sponte, thereby extending the time for filing and service of a permitted claim until July 27, 2001. (Nolen v State of New York, Ct Cl., May 25, 2001, Lebous, J., Claim No. 103798, Motion No. M-63399 [hereinafter "Decision #2"]). Next, Claimant's counsel submitted this application to be relieved as counsel. As part of the Order to Show Cause, this Court ordered that the extended deadline of July 27, 2001 contained in Decision #2 was tolled pending a determination of this motion. (Order to Show Cause dated June 14, 2001). Despite said tolling provision and apparently concerned with allegations of legal malpractice, Claimant's counsel filed yet a third Verified Amended Claim on July 19, 2001 in the Office of the Clerk which was assigned Claim No. 104599, together with proof of service by certified mail, return receipt requested, on the Office of the Attorney General.


This Court accepted this motion despite the fact that no claim was actually pending at the time of the application, because Decision #1 had granted Claimant permission to file a late claim and there appeared to be confusion relative to counsel's obligation to comply with that Decision as attorneys of record relative thereto. In view of Claimant's counsel's most recent filing of Claim No. 104599 and for purposes of clarity, this application to withdraw will be deemed to relate to each of the prior Claims and motions connected to the history of this matter, even those Claims previously dismissed, including Claim Nos. 102652, 103798, 104599, Motion Nos. M-62396, M-63399, M-63774 and Cross-Motion No. CM-62553.


Turning to the substance of this application, 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 received a response from Claimant demonstrating his actual receipt of these motion papers. Additionally, counsel filed proof of service establishing personal service upon Claimant pursuant to this Court's Order to Show Cause dated June 14, 2001. As such, the Court concludes that Claimant received reasonable notification of the instant application.


The requisite showing of good cause has been described as being within the sound discretion of the trial court. (Hunkins v Lake Placid Vacation Corp., 120 AD2d 199, 201). Here, counsel outlined the relevant history between counsel and client including the submission of numerous e-mail communications received from Claimant. The Court will not recite Claimant's statements verbatim but they contain a litany of alleged mistakes committed by his counsel; incessant questioning of counsel's professional judgment; verbal threats to the firm's attorneys and staff; threats of legal malpractice suits; threats of picketing outside the law firm; refusal to cooperate and Claimant's own interpretations of the applicable law governing his case. These e-mail communications, which Claimant admits sending, can be fairly described as contentious and hostile. In sum, the underlying theme in these communications by Claimant, also reflected in his opposing papers hereto, is his challenge to counsel's abilities, loyalty and professional integrity. When, as here, a client has exhibited a total lack of trust and confidence in counsel, the courts do not expect nor will they compel continued representation. (Bankers Trust Co. v Hogan, 187 AD2d 305). In this Court's view, Claimant's continuing charges of counsel's alleged mistakes - real or imagined - have served to sufficiently deteriorate this attorney-client relationship to the point that further representation would be inappropriate, if not impossible. (Ashker v International Bus. Machs. Corp., 201 AD2d 765; Hunkins v Lake Placid Vacation Corp., supra, 120 AD2d, at 201; Bankers Trust Co. v Hogan, supra, 187 AD2d 305; Code of Professional Responsibility DR 2-110[C][1][d]; 22 NYCRR 1200.15(c)[1][iv]).


Finally, the Court notes Claimant's representations regarding his inability to locate new counsel despite numerous inquiries. The Court will permit Claimant some additional time to locate new counsel, after which Claimant shall advise the Clerk of the Court of his intention to proceed pro se. On this issue, the Court notes that Claimant currently has at least 7 other Claims pending before this Court each of which he commenced pro se, thereby demonstrating his willingness to proceed without counsel.[1]


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).


2. Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the Claimant by personal service; and


3. Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the State of New York by regular mail; and


4. Claimant's counsel shall file an affidavit of service on the Claimant with the Clerk of the Court in Albany. Upon the Clerk's receipt of this affidavit, counsel shall be relieved from representation of Claimant.


5. 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 have filed a notice of appearance by a new attorney; and


6. If Claimant fails to appear pro se or by his new attorney within the said 60 day period, Claim No. 104599 will be deemed dismissed for his default (22 NYCRR 206.15), and no further order of this Court will be required.


7. Claimant shall keep the Office of the Clerk advised of any changes in his address in accordance with the Uniform Rules for the Court of Claims (22 NYCRR) § 206.6.

September 24, 2001
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1] The Claim Nos. for those seven claims are as follows: 95823; 95944; 96044; 96506; 97746; 100611; 100941.