New York State Court of Claims

New York State Court of Claims

BRAHINSKY v. THE STATE OF NEW YORK, #2004-016-049, Claim No. 102555, Motion No. M-68615


Synopsis


Motion to withdraw was granted.

Case Information

UID:
2004-016-049
Claimant(s):
SHIRLEY BRAHINSKY, Guardian Ad Litem for KRAYNA BRAHINSKY
Claimant short name:
BRAHINSKY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102555
Motion number(s):
M-68615
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Sherman & Basichas, LLPBy: Mark M. Basichas, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, Esq., AAG
Third-party defendant's attorney:

Signature date:
August 18, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of the law firm of Sherman & Basichas, LLP to withdraw as counsel for claimant. In the underlying action, it is alleged that claimant fractured her hip on November 10, 1997 while a patient at Manhattan Psychiatric Center. 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, with regard to cause, defendant has a Mental Hygiene Law §43.03 counterclaim against Ms. Brahinsky in the amount of $1,246,186.46. Claimant's counsel essentially asserts, citing "a recent decision by the court of claims,"[1] that in his view, such counterclaim effectively eliminates any chance of recovery for Ms. Brahinsky or counsel.

With regard to notice, counsel has submitted an affidavit stating that Shirley Brahinsky was personally served with this motion; she submitted no papers in opposition. Defendant was also served and submitted an affirmation asserting that the State takes no position on the motion.

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[2], IT IS ORDERED that motion no. M-68615 be granted to the extent that:
  1. Permission to withdraw is hereby granted to Sherman & Basichas, LLP, only upon satisfaction of the requirements of ¶2 hereof.
  2. Within fourteen (14) days of the filing of this Decision and Order, Sherman & Basichas, LLP shall personally serve upon Shirley Brahinsky a file-stamped copy of this Decision and Order. Within fourteen (14) days of such personal service, counsel shall file an affidavit of service with the Clerk of the Court. Only upon the Clerk's receipt of such affidavit of service shall Sherman & Basichas, LLP be relieved from representation of claimant; and
  3. No further proceedings shall take place with respect to this claim until 120 days after the filing of this Decision and Order, so as to permit claimant to retain new counsel or notify the Court that she wishes to appear pro se. Shirley Brahinsky shall, within 120 days of the filing of this Decision & Order, have new counsel file a notice of appearance, or, within such 120 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 (Victor J. D'Angelo, 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).
  4. If claimant fails to so appear by new counsel or to notify the Clerk of the Court within such 120-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.


August 18, 2004
New York, New York

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




  1. [1]See Brahinsky v State of New York, Ct Cl dated February 2, 2004 (claim no. 102555, motion nos. M-65983 and CM-66083, unreported, Marin, J.), citing Langevin v State of New York, 196 Misc 2d 809, 763 NYS2d 730 (Ct Cl 2003).
  2. [2]The Court reviewed claimant's counsel's affirmation in support of this motion and defendant's affirmation in response. Claimant submitted no papers in response to the motion.