New York State Court of Claims

New York State Court of Claims

MARGARITIS v. THE STATE OF NEW YORK, #2003-015-326, Claim No. 104065, Motion Nos. M-66469, M-66316


Court denied attorney's motion to be relieved due to failure to serve order to show cause as directed. Movants required to respond to State's outstanding motion by July 9, 2003. Court also refused to file attorney's lien.

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):
M-66469, M-66316
Cross-motion number(s):

Claimant's attorney:
Hollander, Strauss & Mastropietro, LLPBy: Michael R. Strauss, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Arthur Patane, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of claimant's attorneys of record to withdraw as counsel and for an order fixing the attorneys' lien is denied. By order to show cause filed on March 4, 2003 and made returnable on March 12, 2003 claimant's attorneys moved for an order granting leave to withdraw as counsel, fixing the fee and lien of said attorneys for services rendered to date and granting such other relief as the Court deems proper. The order to show cause indefinitely stayed all proceedings in connection with the action[1].

Neither the claimant nor the defendant opposed the motion.

It is established that an attorney may not unilaterally withdraw from representation upon request but must obtain Court approval (CPLR 321 [b][2]; Jamieko A., Matter of, 193 AD2d 409, 410) upon a showing of good and sufficient cause (see, Matter of Dunn, 205 NY 398, 403; Lake v M.P.C. Trucking, 279 AD2d 813). The application must be made on reasonable notice, i.e., on such notice as the Court may direct (CPLR 321 [b][2]); Wong v Wong, 213 AD2d 399). Here the Court directed in its order to show cause that claimant be served by first class mail and by certified mail/return receipt requested. Movant filed an affidavit of service with the Court Clerk on March 4, 2003 which alleges service upon claimant at two separate addresses via certified mail, return receipt requested, and includes references to two separate certified mail numbers.

The affidavit of service fails to allege service upon claimant by first class mail as ordered by the Court. Moreover, the movant neither supplied a further affidavit evidencing receipt of the motion papers by claimant nor supplied either the signed green card or a stamped certified mail receipt to demonstrate that such service was effected (see, State of New York v International Fid. Ins. Co., 181 Misc 2d 595). As Judge Lebous of this Court recently observed:
"[P]roof of delivery is a necessity. Without the accompanying green card or stamped certified mail receipt this Court cannot ascertain whether or not counsel ever mailed these documents in the manner directed or that they were received at Claimant's last known address (Baird v State of New York, Ct Cl, November 19, 1993, Corbett, Jr. Claim No. 87372, Motion No. M-48111)" (Accime v State of New York, Ct Cl, July 19, 2001 [Claim No. 98888, Motion No. M-63319] Lebous, J., unreported).

The Court finds that the movant has failed to establish that claimant received reasonable notification of the instant application in the manner prescribed in the order to show cause.

With respect to the element of good cause Michael R. Strauss, a member of the subject law firm, alleged in his affirmation in support that the claimant is (upon information and belief) the president and sole shareholder of Keystone Construction Corp. Mr. Strauss states that on June 11, 2001 he "received a telephone call from Keystone's Vice President, Nikos Kantzoglou, during which he stated that Mr. Margaritis had left for Greece and had no intention of returning" (Strauss affirmation para 7). He further averred that he received "similar advises from other individuals, including (a) Mr. Margaritis' daughter, Angela Carnegie, (b) Mr. Margaritis' then current and now former son-in-law, William Carnegie and (c) Keystone's former bookkeeper, that Mr. Margaritis abruptly left the country in June, 2001 for Greece where, upon information and belief, he remains."

Strauss attached various documents to his affirmation tending to show that claimant violated his agreement and obligation to movant's firm as to fees and expenses and alleged that claimant's failure to communicate with the firm "rendered it impossible for us to prosecute the Claim."

Aside from the letter retainer agreement from Strauss to Nick Margaritis c/o Keystone Construction Corp., 99-45 Fort Hamilton Parkway, Brooklyn, New York dated March 22, 2001[2] the record is devoid of any other communication between movant and its client prior to the making of the instant motion (see, Accime v State of New York, supra; cf.; Eastmond v State of New York, Ct Cl, March 14, 2000 [Claim No. 093412, Motion No. M-61049] Read, P.J., unreported).

Absent adequate proof of notice to the claimant by either first class mail or by certified mail, return receipt requested, and without evidence of the steps taken by the movant to maintain or re-establish contact with its client the Court is constrained to deny the motion.

The motion is, therefore, denied and the stay of all proceedings imposed by the order to show cause is hereby lifted. The defendant's previously referenced motion to compel and/or preclude is rescheduled for July 16, 2003. Movant's papers in response to the motion must be served and filed no later than July 9, 2003.

June 10, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause filed March 4, 2003;
  2. Affirmation of Michael R. Strauss dated February 11, 2003 with exhibits.

[1]The stay affected a motion by the defendant originally returnable on February 19, 2003 (M-66316) seeking an order compelling the claimant to respond to demands for the production of records and a notice of examination before trial and sought the conditional preclusion of evidence at trial if claimant failed to respond to the anticipated order to compel.
[2]This date predates the filing of the instant claim on April 2, 2001.