New York State Court of Claims

New York State Court of Claims

FIGUEROA v. THE STATE OF NEW YORK, #2002-015-245, Claim No. 100498, Motion No. M-64607


Synopsis


Infant claimant's attorney's motion to withdraw as counsel due to breakdown of attorney client relationship granted.

Case Information

UID:
2002-015-245
Claimant(s):
MIGUEL FIGUEROA, an Infant under the age of 14 by his mother and Natural Guardian, EVA ADORNO
Claimant short name:
FIGUEROA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100498
Motion number(s):
M-64607
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Rosenberg, Minc, Falkoff & Wolff, LLPBy: Mitchell J. Rich, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 23, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

By order to show cause signed by this Court on January 16, 2002 and made returnable on February 6, 2002 the claimant's attorneys of record, Rosenberg, Minc, Falkoff & Wolff (Mitchell J. Rich, of counsel) have moved for an order to be relieved as claimant's attorneys pursuant to CPLR § 321 (b). The claimant, as mother and natural guardian of the above named infant[1], has not opposed the motion and it is granted as provided below. Although a client may discharge an attorney without cause at any time, there must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney/client relationship (see, Matter of Dunn, 205 NY 398, 403; Lake v M.P.C. Trucking, 279 AD2d 813; Code of Professional Responsibility DR 2-110 [22 NYCRR § 1200.15]); People v Woods, 117 Misc 2d 1, 2). The court is satisfied from the affidavit of personal service on Eva Adorno submitted on the motion that claimant received reasonable notification of counsel's application to withdraw.

The affirmation of Mitchell Rich in support of the motion sets forth factual allegations tending to prove that good cause exists to permit the law firm's withdrawal. While the determination of good cause lies within the Court's discretion (People v Salquerro, 107 Misc 2d 155) it is incumbent upon the moving party to demonstrate that the underlying action is without merit, there has been a breakdown in the attorney/client relationship or that irreconcilable differences have arisen which would make it unreasonably difficult, if not impossible, for the attorney to carry out his/her employment effectively (Valente v Seiden, 244 AD2d 799, 800; Ashker v International Bus. Machs. Corp., 201 AD2d 765; see, Code of Professional Responsibility DR 2 -110 [c][1][a] [22 NYCRR § 1200.15 (c)(1)(i)] and DR 2-110 [c][1][d] [22 NYCRR § 1200.15 (c) (1) (iv)]). The movant has met its burden demonstrating to the Court's satisfaction that a breakdown of the attorney/client relationship has occurred as evidenced by the claimant's repeated failure to keep appointments made for the purpose of executing an affidavit in support of an application to vacate the order dismissing the claim issued upon claimant's and her infant's failure to appear for trial on October 31, 2001.

Although there is no reason to vacate the order of dismissal at this time the Court notes that since Miguel Figueroa has not yet reached legal majority he may commence a claim seeking the same relief against the State upon attaining his eighteenth birthday or within three years thereof (see, CPLR § 208; Henry v City of New York, 94 NY2d 275). The motion of Rosenberg, Minc, Falkoff & Wolff, LLP to be relieved is granted.

IT IS ORDERED that the withdrawing attorneys personally serve a copy of the instant decision and order with notice of entry upon Eva Adorno within 20 days of its filing and file proof of such service with the Clerk of the Court within ten days following such service.


April 23, 2002
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order to show cause dated January 4, 2002;
  2. Affirmation of Mitchell J. Rich dated December 26, 2001 with exhibits.

[1]The infant, whose date of birth is March 12, 1985, is now 17 years old but the caption has not been amended to reflect this fact.