New York State Court of Claims

New York State Court of Claims

JACOME v. THE STATE OF NEW YORK, #2003-016-033, Claim No. 98210, Motion No. M-66514


Motion to withdraw as counsel was granted.

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):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
McElfish & Cafaro, LLPBy: William Cafaro, Esq., as successor in interest
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
April 21, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to permit the withdrawal of claimants' lawyers McElfish & Cafaro, LLP or, in the alternative, such firm's successor in interest, William Cafaro, Esq. The underlying claim alleges defective highway design, construction and maintenance in connection with an automobile accident in which claimant Numan Jacome was injured.[1] This claim was originally filed by the law firm of Parker & Waichman. After the claim was filed, claimants sought new counsel and retained the firm of McElfish & Cafaro, LLP, which was substituted for Parker & Waichman in a stipulation filed on July 19, 1999. At some point thereafter, McElfish & Cafaro, LLP dissolved as William Cafaro, Esq. makes this motion on behalf of such firm, which is counsel of record, or alternatively on behalf of himself as "successor in interest."

Numan Jacome died intestate on April 21, 2000 and letters of administration were issued by the Surrogate in Queens County naming Lourdes Enriquez as administratrix of the estate. Mr. Cafaro asserts that Ms. Enriquez "stopped cooperating with me long ago," adding that she has failed to return his phone calls. See ¶¶ vi) and ix) of the February 19, 2003 affirmation of William Cafaro, Esq.

Counsel explains that after his last communication with Ms. Enriquez, she again sought other counsel, retaining Charles Wissel, Esq. in connection with a related Supreme Court litigation against the City of New York and other individuals, but Mr. Wissel was unwilling to "accept retention in the Court of Claims case." See id. at ¶¶ vi-viii.
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Counsel represents that this motion was sent by both regular mail and certified mail, return receipt requested to Lourdes Enriquez and by regular mail to defendant. See the affidavits of service of Mercedes Millones submitted with counsel's moving papers. Neither Ms. Enriquez nor defendant responded to the motion.

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 (Sup Ct NY County 1980).

In view of Mr. Cafaro's representations as to Ms. Enriquez' failure to communicate with him, I find that there has been a showing of good cause to be relieved.

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-66514 be granted to the extent that:
  1. Permission to withdraw as attorney of record is hereby granted to counsel of record McElfish & Cafaro, LLP and its successor in interest William Cafaro, Esq., subject to the requirements of ¶2 hereof.
  2. Within fourteen (14) days of the filing of this Decision and Order, William Cafaro, Esq. shall serve upon Lourdes Enriquez a file-stamped copy of this Decision and Order by certified mail, return receipt requested and by regular mail. Counsel shall thereafter promptly 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 representation of claimants; and
  3. No further proceedings shall take place with respect to this claim until ninety (90) days after the filing of this Decision and Order, so as to permit Lourdes Enriquez to retain new counsel if desired. Lourdes Enriquez shall, within 90 days of the filing 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 (Grace Brannigan, Esq., AAG, New York State Department of Law, 120 Broadway, New York, NY 10271) in writing of her intention to proceed without counsel (pro se), or file a notice of appearance by a new attorney.
  4. If Lourdes Enriquez fails 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.

April 21, 2003
New York, New York

Judge of the Court of Claims

  1. [1]Lourdes Enriquez' claim is for loss of services.
  2. [2]The following were reviewed: counsel's order to show cause with affirmation in support and exhibit 1.