1. Order to Show Cause and Supporting Affirmation of Steven Wildstein, with
annexed Exhibits 1-7 ("Wildstein affirmation") signed by the Court on January
3, 2001 and filed January 29, 2001.
2. Affidavit of service of Samantha Lo, received January 29, 2001
3. Affirmation of AAG Kevan J. Acton, Esq., filed January 24, 2001
4. Affidavit in Opposition: none received
Filed papers: Claim, filed June 22, 1998
This claim is based on allegations of negligence in that claimant was bound,
forcibly assaulted and sodomized while incarcerated at the Franklin Correctional
The motion was commenced by Order to Show Cause (CPLR 321[b]), and counsel
was directed to serve claimant by ordinary mail and by certified mail, return
receipt requested. Attached to the affidavit of service is a photocopy of a
certified mail receipt signed by someone whose name appears to be Anthony
. Claimant has not responded to the
motion in any fashion. Defendant's counsel took no position on the instant
application for permission to withdraw.
In his affirmation in support of the instant motion, Attorney Steven Wildstein
states that his investigation and development of the case has lead him to
conclude that he cannot obtain a favorable result for his client. He details
the factors which he believes weigh against the claim, including statements of
inmates in the area of the alleged attack as well as the lack of physical
evidence. He also reflects that the single factor supporting this claim is his
client's statements regarding the alleged attack. Although Attorney Wildstein
does not state it directly, the Court gleans from his affirmation that he
believes this is potentially a frivolous
, 22 NYCRR Part 130 and 22
NYCRR 1200.15 (c). His affirmation does not indicate whether the client is
insisting that the claim continue to be presented.
Although a client may discharge an attorney, with or without cause, at any
time, an attorney of record may withdraw or be changed only in a manner
prescribed by statute (Moustakas v Bouloukos, 112 AD2d 981, 983; see,
CPLR 321 [b]). Where, as here, the permission of a court is required, the
attorney must prove that his or her client had reasonable notice and that there
is good and sufficient cause for the withdrawal (Catrone v Catrone, 92
AD2d 559; 6 NY Jur 2d, Attorneys at Law, §74). Here, it is abundantly
evident that counsel's analysis of the case will prevent him from representing
claimant zealously, thus counsel cannot fulfill his obligation to claimant under
22 NYCRR 1200.32).
On the basis of the certified mail receipt, showing delivery of the Order to
Show Cause to claimant at claimant's last known address, the Court concludes
that claimant received adequate notification of this motion. The facts recited
by counsel are sufficient to justify granting the motion, and claimant has
neither disputed those facts nor indicated any type of opposition to the motion.
Counsel's motion is granted and the Chief Clerk is directed to amend the
Court's records to reflect that claimant ERIC RICHARDSON, 877 Pennsylvania
Avenue, Apartment 7C, Brooklyn, NY 11207, is appearing as his own
representative. Counsel shall make and provide a copy of the Claimant's file to
the claimant at the address set forth above, by certified mail return receipt
requested, within fourteen days of the filed date of this decision and order.
All action in this claim is stayed for thirty days to give claimant an
opportunity to retain new counsel (CPLR 321[c]). At the expiration of that
time, the Court will expect the claim to proceed toward trial in an efficient
manner or to be discontinued.