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 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.
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] ; 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:
Claim, filed March 1, 1999.
DECISION AND ORDER, Lebous, J., Claim No. 99895, Motion No. M-63306, dated July
9, 2001, and filed July 20, 2001.
Order to Show Cause, Motion No. M-67802, dated December 23, 2003.
Affirmation of Irwin M. Berg, Esq., in support of Order to Show Cause, dated
December 16, 2003, with attached exhibits.
Reply Affirmation of Gwendolyn Hatcher, AAG, in reply to Order to Show Cause,
dated January 22, 2004, and filed January 23, 2004.
Reply Affirmation of Irwin M. Berg, Esq., in support of Order to Show Cause,
dated January 29, 2004, and filed February 2, 2004.
Affidavit of Service of Order to Show Cause.
Letter from Irwin M. Berg, Esq., to Court, dated February 5, 2004, enclosing in