New York State Court of Claims

New York State Court of Claims

RICHARDSON v. THE STATE OF NEW YORK, #2001-028-0521, Claim No. 98500, Motion No. M-63027


Attorney's motion to withdraw (CPLR 321[2]) is granted where counsel's investigation and analysis of the case precludes zealous representation and where claimant has made no submission in opposition to the motion.

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:
Defendant's attorney:
BY: Kevan J. Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 1, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Attorney Steven Wildstein for permission to withdraw as claimant's representative.

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 Facility.

The motion was commenced by Order to Show Cause (CPLR 321[b][2]), 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 Lello[1]. 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 claim[2]. See, 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.

March 1, 2001
Albany, New York

Judge of the Court of Claims

[1] Counsel's affirmation, as well as the affidavit of service, identify claimant as being also known as Anthony Lello.
[2] The Court takes no position with regard to this issue, nor should the Court's analysis of the Wildstein affirmation be used to suggest the claim is in fact frivolous.