New York State Court of Claims

New York State Court of Claims

BOARO v. THE STATE OF NEW YORK, #2004-016-045, Claim No. 103355, Motion No. M-68557


Synopsis


Counsel's motion to withdraw was granted.

Case Information

UID:
2004-016-045
Claimant(s):
DIANE BOARO
Claimant short name:
BOARO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103355
Motion number(s):
M-68557
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Decolator, Cohen & DiPrisco, LLPBy: John V. Decolator, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
August 11, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of the law firm of Decolator, Cohen & DiPrisco, LLP to withdraw as counsel for claimant. In the underlying action, it is alleged that because of defendant's negligence, claimant had an automobile accident on the Sunken Meadow Parkway in Suffolk County. 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 this case, counsel asserts that irreconcilable differences have arisen with the claimant and counsel is thus unable to zealously prosecute the claim. In response to this motion, with which she was served, claimant submitted an affidavit stating that she has no objection to the withdrawal of Decolator, Cohen & DiPrisco, however, she requested that the firm be directed to turn over its file to her. In response to Ms. Boaro's affidavit, counsel sent a July 26, 2004 letter stating that claimant's entire file was forwarded to her two years earlier on July 26, 2002. Counsel has also submitted a copy of a July 26, 2002 cover letter indicating that the file was sent to claimant at her request. Ms. Boaro has submitted nothing to indicate that she did not in fact receive the file.

In view of the foregoing, I find that there has been a showing of good cause and reasonable notice sufficient for counsel to be relieved. Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-68557 be granted to the extent that:
  1. Permission to withdraw is hereby granted to Decolator, Cohen & DiPrisco, LLP, only upon satisfaction of the requirements of ¶2 hereof.
  2. Within fourteen (14) days of the filing of this Decision and Order, Decolator, Cohen & DiPrisco, LLP shall serve upon Diane Boaro a file-stamped copy of this Decision and Order, either personally, or by certified mail, return receipt requested. Within fourteen (14) days of such personal service or of obtaining the return receipt or of being notified by the United States Postal Service that the Order was either undeliverable or unclaimed, counsel shall file an affidavit of service with the Clerk of the Court, attaching such return receipt or notification from the United States Postal Service, if applicable. Only upon the Clerk's receipt of such affidavit of service shall Decolator, Cohen & DiPrisco, LLP be relieved from representation of claimant; 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 Diane Boaro to retain new counsel or notify the Court that she wishes to represent herself. Diane Boaro shall, within 90 days of the filing of this Decision & Order, have new counsel file a notice of appearance, or, within such 90 days, 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 (Denis McElligott, Esq., AAG, New York State Department of Law, 300 Motor Parkway, Hauppauge, NY 11788) in writing of her intention to proceed without counsel (pro se).
  4. If Diane Boaro fails to so appear by new counsel or to notify the Clerk of the Court 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.

August 11, 2004
New York, New York

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




  1. [1]The Court reviewed the following: claimant's counsel's affirmation in support of this motion with exhibit A; claimant's "Affidavit in Partial Opposition"; and claimant's counsel's letter dated July 26, 2004 with attached copy of July 26, 2002 letter. Defendant submitted no papers.