New York State Court of Claims

New York State Court of Claims

PINE v. THE STATE OF NEW YORK, #2002-016-114, Claim No. 103365, Motion No. M-65895


Synopsis


Motion to withdraw as counsel was granted.

Case Information

UID:
2002-016-114
Claimant(s):
LARRY PINE and ANDREA PINE The caption has been amended to reflect that the sole proper defendant is the State of New York..
Claimant short name:
PINE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York..
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103365
Motion number(s):
M-65895
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Barton Barton & Plotkin LLPBy: Ann B. Chase, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Katharine S. Brooks, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 1, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of the law firm of Barton Barton & Plotkin LLP to withdraw as claimants' counsel. The underlying claim alleges medical malpractice in connection with the treatment of Larry Pine at the State University of New York Health Science Center at Brooklyn - University Hospital. This motion was served personally on claimant Larry Pine on behalf of Mr. Pine and his wife, claimant Andrea Pine. Defendant was served by U.S. Postal Service. See the affidavits of service annexed to counsel's moving papers. Claimants failed to respond to the motion. Defendant takes no position thereon. See the October 15, 2002 affirmation of Katharine S. Brooks.

There must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney-client relationship. See, e.g., J. M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929, 530 NYS2d 355 (4th Dept 1988). What constitutes good cause is not an objective determination, but rather lies within the sound discretion of the trial court. See, e.g., People v Salquerro, 107 Misc 2d 155, 433 NYS2d 711 (N.Y. Sup. 1980). Here, counsel asserts that "[a]t this point in the litigation, the claimants and your affirmant's law firm have reached an impasse with respect to how to properly proceed with this matter thereby rendering it impossible for your affirmant's law firm to continue representing the claimants in this action." Paragraph 5 of the August 30, 2002 affirmation of Ann B. Chase.

As set forth above, claimants have been notified of counsel's request to withdraw and I find that counsel has made a showing of good cause to be relieved.

Accordingly, having reviewed the parties' submissions[1], IT IS ORDERED that:
  1. Permission to withdraw as attorney of record is hereby granted to Barton Barton & Plotkin LLP, subject to the requirements of ¶2 hereof.
  2. Within ten (10) days of the filing of this Decision and Order, Barton, Barton & Plotkin LLP shall serve upon the claimants a file-stamped copy of this Decision and Order by certified mail, return receipt requested and by regular mail and shall file an affidavit of such service, with the return receipt attached, with the Clerk of the Court. Upon the Clerk's receipt of such affidavit with return receipt, counsel shall be relieved from the representation of claimants; and
  3. No further proceedings shall take place with respect to this claim until ninety (90) days after claimants are served by Barton Barton & Plotkin LLP with a file-stamped copy of this Decision and Order, so as to permit claimants to retain new counsel should they choose to do so. Claimants shall, within 90 days of service upon them of a file-stamped copy of this Decision & Order, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (Katharine S. Brooks, AAG, New York State Department of Law, 120 Broadway, New York, NY 10271) in writing of their intention to proceed without counsel (pro se), or file a notice of appearance by a new attorney; and
  4. If claimants fail to so notify the Clerk of the Court or appear by new counsel within such 90-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.
  5. With respect to counsel's request for preservation of an attorneys' lien on a contingency fee basis for the legal services performed to date, such is denied without prejudice to whatever rights to compensation counsel may have pursuant to §475 of the Judiciary Law or otherwise.

November 1, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: Barton Barton & Plotkin LLP's notice of motion with affirmation in support; and defendant's responsive affirmation.