New York State Court of Claims

New York State Court of Claims

SPALLANE v. THE STATE OF NEW YORK, #2003-015-351, Claim No. 105742, Motion No. M-67094


Synopsis


In exercise of Court's discretion law firm permitted to withdraw as attorneys of record.

Case Information

UID:
2003-015-351
Claimant(s):
SUSAN SPALLANE
Claimant short name:
SPALLANE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105742
Motion number(s):
M-67094
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Linnan & Fallon, LLPBy: James D. Linnan, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney GeneralBy: Couch White LLP
Third-party defendant's attorney:

Signature date:
September 2, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause signed by this court on July 8, 2003 the claimant's attorney of record, James D. Linnan, seeks to be relieved as claimant's attorney in this matter pursuant to CPLR 321 (b). Neither claimant nor the defendant opposed the motion which 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 service submitted on the motion that claimant received reasonable notification of counsel's application to withdraw.

The affirmation of James D. Linnan 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 and, accordingly, the motion to be relieved is granted.

IT IS ORDERED that the withdrawing attorney personally serve a copy of the instant decision and order with notice of entry upon Susan Spallane on or before September 19, 2003 and file proof of such service with the Clerk of the Court. Susan Spallane shall have 45 days following service of the decision and order upon her to inform the Court of the name and address of an attorney retained to represent her on this claim or that she intends to proceed on a pro se basis.


September 2, 2003
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 July 8, 2003;
  2. Affirmation of James D. Linnan dated July 2, 2003 with exhibits.