New York State Court of Claims

New York State Court of Claims

MARGARITIS v. THE STATE OF NEW YORK, #2004-015-402, Claim No. 104065, Motion No. M-68154


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):

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

Signature date:
May 3, 2004
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


By order to show cause signed on March 1, 200[4] claimant's attorneys of record, Hollander & Strauss, LLP,[1] moved for an order seeking to be relieved as claimant's attorneys pursuant to CPLR 321 (b) and fixing its fee and lien for legal services. The motion is not opposed by either the claimant or defendant. 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 sworn to March 8, 2004 and submitted on the motion that under the present circumstances claimant was afforded reasonable notification of counsels' application to withdraw which was served, as directed by the Court, by certified mail, return receipt requested at the two last known addresses used by claimant prior to his departure for Greece in 2001.

The affirmation of Michael R. Strauss 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 there has been a breakdown in the attorney/client relationship, the underlying action is without merit 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.

Movant's request for the Court to fix its fee and lien for services in this matter is, however, denied. The affirmation of Michael R. Strauss submitted in support of the motion alleges at paragraph 15 that legal fees and expenses due on the instant matter are $6,416.43. He then alleges that copies of invoices in this matter total $4,958.54 (Exhibit G) and that the law firm generated a "pre-bill" dated August 12, 2003 reflecting this amount ($4,958.54) plus an as yet unbilled balance of $3,515.18 for a total of $8,474.07 [sic][2]. Movant failed to explain the discrepancy between the $6,416.43 figure and the $8,474.07 figure which are both set forth in paragraph 15 of Counsel's affirmation.

More significantly, paragraphs 16 and 17 of Strauss' affirmation allege that on October 15, 2002 a judgment was entered in favor of Hollander & Strauss[3] against Keystone Construction Corp., of which claimant was the president and sole shareholder, in a Supreme Court, Nassau County action bearing Index No. 5901/02 in the amount of $86,340.88. Although the affiant alleges that the judgment remains unsatisfied at least a portion of that figure, according to Strauss, represents legal fees generated in the instant matter.

Since at least a portion of the indebtedness for legal services in this matter has admittedly been reduced to judgment already in the aforementioned Supreme Court action against a third party (Keystone) it would be inappropriate for this Court to attempt to fix a lien upon such a sketchy and questionable record. Movant's request for relief in this regard is, therefore, denied without prejudice to whatever rights to compensation counsel may have pursuant to Judiciary Law § 475 (see, Eastmond v State of New York, Ct Cl [Claim No. 093412, Motion No. M-61049] UID # 2000-001-001, Read, P.J., unreported[4]).

IT IS ORDERED that the withdrawing attorneys shall serve a copy of the decision and order herein with notice of entry upon Nick Margaritis by certified mail, return receipt requested and by regular mail at his last two known addresses on or before May 28, 2004 and file proof of service with the Clerk of the Court. Nick Margaritis shall have 45 days following service of the decision and order upon him to inform the Court of the name and address of an attorney retained to represent him on this claim or that he intends to proceed on a pro se basis. Failure of claimant to notify the Court as herein directed will result in the scheduling of a conference in Chambers. If claimant fails to appear at said conference the Court will entertain a motion to dismiss the claim as abandoned and it is further

ORDERED that the stay of proceedings imposed in the order to show cause is hereby lifted and the State's pending motion to dismiss the claim is adjourned to August 4, 2004. Opposition papers to said motion, if any, shall be served and filed no later than July 28, 2004.

May 3, 2004
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated March 1, 200[4];
  2. Affirmation of Michael R. Strauss dated February 24, 2004 with exhibits;
  3. Affidavit of Nikos Kantzoglou sworn to November 20, 2003;
  4. Affidavit of Service sworn to March 8, 2004.
  5. Affirmation of David Brozik dated March 15, 2004 with exhibits;

[1]At the time the claim was filed the firm was known as Hollander, Strauss & Mastropietro, LLP.
[2]$4,958.54 + $3,515.18 = $8,473.72.
[3]Exhibit J shows judgment entered in favor of Hollander, Strauss & Mastropietro (see, footnote 1).
[4]Recent Court of Claims decisions are available on the internet at .