New York State Court of Claims

New York State Court of Claims

TORTORA v. THE STATE OF NEW YORK, #2004-016-046, Claim No. 103279, Motion No. M-68614


Motion to withdraw was granted

Case Information

PATRICK TORTORA, an infant by his mother and natural guardian, JOANNE GLENNON, and JOANNE GLENNON, individually
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:
Siben & Siben, LLPBy: Andrew J. Schaber, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
August 11, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of the law firm of Siben & Siben, LLP to withdraw as counsel for claimants. In the underlying action, it is alleged that because of defendant's negligence, claimant Patrick Tortora was injured when he fell from a swing set at the State University of New York Hospital at Stony Brook. 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, as to cause, counsel states that numerous efforts were made to schedule the depositions of claimants, specifically, by letters sent on February 19, March 22 and April 30, 2003. Ultimately, contact was made and claimants' depositions were scheduled for July 23, 2003. Claimants failed to appear on such date and the depositions were cancelled. Counsel then sent a letter dated February 24, 2004 and made numerous phone calls, but was unable to contact claimants to reschedule the depositions. See ¶ 5 of the May 21, 2004 affirmation of Andrew J. Schaber (the "Schaber Aff.").

Counsel states that "[d]espite the numerous phone calls, the use of office investigators to locate the Claimants' whereabouts and the mailing of various letters by both Regular Mail and Certified Mail Return Receipt Requested, and finally despite inquiries made to the Suffolk County Attorneys office, the Claimants have failed to respond and have frustrated the further prosecution of this lawsuit. It is therefore impossible for [Siben & Siben, LLP] to represent the best interest of the Claimants in this matter . . ." See ¶7 of the Schaber Aff.

With regard to notice, Siben & Siben, LLP has submitted with its papers an affidavit of service indicating that this motion was served on claimant Joanne Glennon by both regular mail and by certified mail, return receipt requested.

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-68614 be granted to the extent that:
  1. Permission to withdraw is hereby granted to Siben & Siben, LLP, only upon satisfaction of the requirements of ¶2 hereof.
  2. Within fourteen (14) days of the filing of this Decision and Order, Siben & Siben, LLP shall serve upon Joanne Glennon 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 along with any applicable attachment shall Siben & Siben, LLP 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 claimants to retain new counsel or notify the Court that they wish to appear pro se. Joanne Glennon 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 claimants' intention to proceed without counsel (pro se).
  4. If claimants fail 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

Judge of the Court of Claims

  1. [1]The Court reviewed claimants' counsel's affirmation in support of this motion. Neither claimants nor defendant submitted any papers in response to the motion.