New York State Court of Claims

New York State Court of Claims

SANTULLI v. THE STATE OF NEW YORK, #2004-019-520, Claim No. 99895, Motion No. M-67802


Synopsis


Case Information

UID:
2004-019-520
Claimant(s):
JOSEPH SANTULLI
Claimant short name:
SANTULLI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99895
Motion number(s):
M-67802
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
FUCHSBERG & FUCHSBERG, LLPBY: Irwin M. Berg, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Gwendolyn Hatcher, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 25, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant's counsel, Fuchsberg and Fuchsberg LLP, move for the second time to withdraw as attorneys of record for claimant pursuant to CPLR 321 (b) (2). Defendant State of New York (hereinafter "State") takes no position on the instant application for permission to withdraw. Claimant has not responded to this motion.

This claim alleges that claimant's hand was fractured while he was a patient at the Kingsboro Psychiatric Center by an employee thereof who stepped on his hand while attempting to intervene in an altercation between two other patients that occurred on September 19, 1998. A notice of intention was served on the Office of the Attorney General on November 12, 1998. The claim was filed on March 1, 1999 and served upon the Office of the Attorney General on that same date.


Counsel previously moved to be relieved of counsel based upon allegations of irreconcilable differences with their client with respect to the proper course to be pursued in this matter. At the time of that initial application, claimant was being held at the Federal Correctional Institute in Butner, North Carolina, apparently in a mental health unit. This court denied counsel's request to withdraw based primarily on concerns regarding "[c]laimant's ability to understand these proceedings and the practical obstacles that he would face in attempting to secure new counsel or in proceeding as a pro se litigant in light of his current out of state residence and mental health background [footnote omitted]." (Santulli v State of New York, Ct Cl, July 9, 2001, Lebous, J., Claim No. 99895, Motion No. M-63306, p 3 [UID No. 2001-019-543]).[1] More than two years have transpired since that Decision & Order, and counsel now makes this second request to be relieved as counsel based upon a wholly separate and distinct reason, namely the dissolution of the law firm of Fuchsberg and Fuchsberg LLP.


It is well-settled that counsel seeking to be relieved as counsel must make a showing of good cause and reasonable notice. (CPLR 321 [b] [2]; Matter of Jamieko A., 193 AD2d 409, 410; Bathgate v Haskin, 59 NY 533; see also, Disciplinary Rules of the Code of Professional Responsibility DR 2-110 [22 NYCRR 1200.15]). With respect to the issue of reasonable notice, the court must be provided with proof that reasonable notice was given to the client (Matter of Dunn, 205 NY 398, 403; LeMin v Central Suffolk Hosp. 169 AD2d 821) or, at the least, that diligent efforts have been made in an attempt to locate the client (Wong v Wong, 213 AD2d 399). Here, the Order to Show Cause signed December 23, 2003 directed counsel to serve claimant with these motion papers by certified mail, return receipt requested, and by first class mail at his current address at U.S. Medical Center for Federal Prisoners, P.O. Box 4000, Springfield, MO 65801-4000. It should be noted that this latest address was obtained by counsel through the direct result of hiring an investigator to locate claimant upon receiving information that the prior known address at the federal facility in North Carolina was no longer valid. Counsel has filed an affidavit of service stating that the Order to Show Cause was mailed to claimant by certified mail, return receipt requested, and by first class mail at said address, although the green receipt card was never returned. In a telephone conference with chambers, counsel represented that although the green receipt card was never returned, neither piece of mail was returned to him as undeliverable. In this court's view, even though the green receipt card was never returned, counsel has made exemplary efforts to locate claimant through the hiring of an investigator and has satisfied the notice requirement. As previously noted, claimant has not responded to this motion.


With respect to the second element of good cause, the requisite showing of good cause has been described not as an objective determination, but rather as being within the sound discretion of the trial court. (People v Salquerro [Albaracon], 107 Misc 2d 155). Here, counsel explains that the law firm of Fuchsberg and Fuchsberg LLP is being dissolved following the death of the senior partner, Abraham Fuchsberg, on April 15, 2003. Counsel avers that, among other things, that their legal library is no longer being updated; their lease terminates in mid-2004; and that only one attorney remains with the firm to handle the shutdown. (Affirmation of Irwin M. Berg, Esq., ¶ 4). Additionally, counsel avers that he was not able to obtain substitute counsel. In a telephone conversation with chambers and a subsequent letter to the court dated February 5, 2004, Mr. Berg explained that he plans to continue practicing on an ad hoc basis, he is 70 years old, and was never a personal injury attorney in his 35 years of practice. (Court Exhibit 1). Further, Mr. Berg stated that none of the firm's former associates were willing to take this case with them to their new firms or were never personal injury attorneys in the first instance. Moreover, counsel indicates that the last communication from the claimant was more than three years ago by way of letter dated August 9, 2001. (Affirmation of Irwin M. Berg, Esq., ¶ 5). A copy of claimant's letter has been submitted to the court for an in camera review. Based upon the foregoing, the court finds that counsel has made a showing of good and sufficient cause for withdrawal upon reasonable notice to claimant due to the dissolution of the law firm of Fuchsberg and Fuchsberg LLP.


That having been determined, the court will not include in this Decision & Order the standard language for a conditional order of dismissal. Rather, this case will remain on the court's calendar. With respect to any corresponding stay of these proceedings, the State indicates its objection to a stay exceeding 60 days. (Reply Affirmation of Gwendolyn Hatcher, AAG, ¶ 4). Nevertheless, in view of the unique circumstances of this case and lack of prejudice to the State, the court finds that an extended stay for a period of six (6) months is proper.


Consequently, it is ORDERED that:
  1. Claimant's counsel is permitted to withdraw as attorney of record pursuant to CPLR 321 (b) (2). Claimant's counsel shall serve a file-stamped copy of this Decision & Order upon the claimant by regular mail and certified mail, return receipt requested, at his last known address and upon the Office of the Attorney General by regular mail; and
  2. Claimant's counsel shall file an affidavit of such service, with the signed green receipt card attached, if returned, with the Clerk of the Court. Upon the Clerk's receipt of this affidavit, counsel shall be relieved from representation of claimant.
  3. Claimant shall, within six (6) months of service upon him of a file-stamped copy of this Decision & Order, notify the Clerk of the Court in writing of his intention to either proceed pro se or file a notice of appearance by a new attorney. The Clerk of the Court shall in turn notify the Office of the Attorney General thereof.

February 25, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims



The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 1, 1999.
  2. DECISION AND ORDER, Lebous, J., Claim No. 99895, Motion No. M-63306, dated July 9, 2001, and filed July 20, 2001.
  3. Order to Show Cause, Motion No. M-67802, dated December 23, 2003.
  4. Affirmation of Irwin M. Berg, Esq., in support of Order to Show Cause, dated December 16, 2003, with attached exhibits.
  5. Reply Affirmation of Gwendolyn Hatcher, AAG, in reply to Order to Show Cause, dated January 22, 2004, and filed January 23, 2004.
  6. Reply Affirmation of Irwin M. Berg, Esq., in support of Order to Show Cause, dated January 29, 2004, and filed February 2, 2004.
  7. Affidavit of Service of Order to Show Cause.
  8. Letter from Irwin M. Berg, Esq., to Court, dated February 5, 2004, enclosing in camera submissions.


[1]Unreported decisions from the Court of Claims are available via the Internet at