New York State Court of Claims

New York State Court of Claims

WAID v. THE STATE OF NEW YORK, #2002-013-025, Claim No. 104912, Motion No. M-65176


Motion to withdraw as counsel for an inmate claims is denied where no reasonable basis for the request has been provided, where it appears that counsel has made no effort to communicate in a meaningful way with his client, where there is no proof that the client was served on the motion, and where counsel may have made a jurisdictional error in instituting the action.

Case Information

ERIC WAID The Court has sua sponte amended the caption to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On May 29, 2002, the following papers were read on motion of Michael J. Cooper, Esq., attorney of record for Claimant, for an order permitting him to withdraw as Claimant's counsel:
  1. Order to Show Cause and Supporting Affidavit of Michael J. Cooper, Esq.
  1. Letter to the Court from Michael J. Cooper dated April 2, 2002
  1. Affidavit in Opposition: None Received
  1. Filed Papers: Claim

This personal injury claim arose on July 4, 2001 at Attica Correctional Facility when Claimant's arm was cut as he attempted to open a door to one of the facility's shower rooms. Claimant, represented by the firm of Cellino & Barnes, filed his claim on September 17, 2001.

In late March 2002, the parties were notified that a preliminary conference would be held on April 23, 2002. Michael J. Cooper, Esq., of Cellino & Barnes, sent a letter to the Court announcing that his law firm had "withdrawn as counsel for the plaintiff." Upon being informed by the Court that such unilateral withdrawal was not permitted, Attorney Cooper then served and attempted to file a "notice of Motion" to withdraw. These papers were not accepted by the Court because such motions must be commenced by an Order to Show Cause (22 NYCRR 206.8[c].

The instant motion was then commenced by an Order to Show Cause signed May 3, 2002. The matter was scheduled to be heard on May 29, 2002 at 9:30 a.m., but Attorney Cooper failed to appear on that date. He had not contacted the Court prior to the appearance date to request an adjournment, nor has he contacted the Court since that date to explain his absence. In the interest of expeditious resolution of this matter, however, I will consider the motion on its merits, relying only on the written submissions.

After reciting the nature of the claim and the fact that a claim had been filed, counsel states the following in his affidavit in support of this motion:
4. Upon investigating this matter further, your deponents law firm has decided to withdraw as counsel for the plaintiff. We notified the plaintiff by letter dated October 4, 2001.... Plaintiff failed to respond to that letter.
5. Based upon the plaintiff's failure to respond to our attempt to withdraw as his counsel, your deponent is requesting that the Law Firm of Cellino & Barnes, P.C. be allowed to withdraw as counsel in this matter.

The October 4, 2001 letter that was sent to Claimant stated, in full:

After an investigation of your case, our law firm has decided to withdraw as your counsel at this time. I have filed a valid notice of claim with the State of New York. Therefore, I suggest that you obtain new counsel immediately if your wish to pursue your claim any further.
Our firm is withdrawing as your counsel at this time because we believe it will be difficult to prove that the State of New York was responsible for your injuries.

Thank you for your consideration of our firm.

In support of this motion, counsel provides no additional details about the investigation which resulted in his firm's decision, only a month after filing the claim, to withdraw. The submissions do not indicate that counsel made any further attempt to communicate with his client or to obtain Claimant's consent to the withdrawal.

CPLR 321(b) permits an attorney of record to be changed or to withdraw either on consent of both the attorney and the client or on order of the court. Once an attorney has undertaken to represent a client, his or her right to withdraw is not absolute, and "sound reason" must be given for the court to approve such a step (Matter of Jamieko, 193 AD2d 409, 410). Withdrawal is mandatory where there is "irrefutable evidence" that the attorney has been discharged by the client (Code of Professional Responsibility DR 1-110[B][4] [22 NYCRR 1200.15]; Gersten v Gersten, 134 AD2d 224, 225). Where withdrawal is not mandatory or permitted by the Code of Professional Conduct, there must be a showing of good cause and reasonable notice before an attorney is permitted to withdraw (Bathgate v Haskin, 59 NY 533). The court must be provided with proof that reasonable notice was given to the client (Matter of Dunn, 205 NY 398, 403; LeMin v Central Suffolk Hosp. 169 AD2d 821) or, at the least, that diligent efforts have been made in an attempt to locate the client (Wong v Wong, 213 AD2d 399).

The decision whether to permit an attorney to withdraw rests with the sound discretion of the trial court (Lambrou v Lambrou, 252 AD2d 797). Irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation, an established breakdown in communications between attorney and client, or a client's complete failure to cooperate with counsel are viewed as strong grounds for allowing withdrawal (Zelkha v Ezati, 140 AD2d 338; Winters v Rise Steel Erection Corp., 231 AD2d 626; Mullins v Saul, 130 AD2d 634), while the client's failure to pay counsel does not alone warrant granting such a motion (George v George, 217 AD2d 913).

In the instant situation, I have determined to deny the requested relief. Counsel's motion papers are woefully inadequate, as they do not provide any information from which I can determine whether the decision to withdraw had a reasonable basis. On its face, I find it most peculiar that an attorney would file a claim one month and then, on the basis of some investigation that is not disclosed either to the client or to the Court, decide a month later that the law firm should withdraw. Also inadequate are counsel's efforts to communicate with his client. The letter sent on October 4, 2001, which appears to have been counsel's only communication after accepting the case, is flatly misleading. It inevitably -- and incorrectly -- could have given Claimant the impression that he had no rights or recourse in light of counsel's decision to withdraw. Claimant was never asked to simply consent to the withdrawal, even after counsel became aware that it would be necessary to engage in motion practice to achieve that end. Furthermore, although the motion papers contain an affidavit stating that Claimant was served by "certified return receipt mail," counsel has not included the receipt card to show that service was successful. As Claimant apparently still resides at Attica Correctional Facility, this is not a situation where service might be impossible, or even particularly difficult.

There is another compelling reason for denying this motion: it appears that counsel may have failed to properly commence the claim. If that is the case, Claimant should not be left without representation, and counsel should not avoid having to deal with the results of earlier error. No answer has been filed in this action and, when the Court inquired into that unusual circumstance, the Assistant Attorney General assigned to the case stated that the claim had been served on the State but lacked proper verification. Accordingly, it was treated as a nullity and promptly returned to Claimant's counsel (CPLR 3022), but the claim was never re-served. If these facts are correct, it would appear that counsel provided ineffective representation prior to making the instant motion and now wishes to withdraw without addressing the problem or advising Claimant about his options and any possible remedies.

For these reasons, the motion is denied. Attorney Cooper and the law firm of Cellino and Barnes will remain attorneys of record for Claimant. The Preliminary Conference, originally scheduled for April 23, 2002 and adjourned pending determination of this motion, is rescheduled for July 9, 2002 at 9:00 a.m. for personal appearances by counsel for Claimant and Defendant.

The Clerk of the Court is hereby directed to serve a copy of this order on Claimant at the correctional facility where he is currently housed.

June 12, 2002
Rochester, New York

Judge of the Court of Claims