Claimant's counsel, Allen S. Gold, Esq., moves to withdraw as attorney 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 arose on June 23, 1999, when claimant, an inmate at that time, was a
passenger in a vehicle entering the gate at Sullivan Correctional Facility and
the gate was prematurely closed striking the vehicle in which he was riding.
Claimant alleges he received personal injuries as a result of the accident.
Claimant has since been released from prison. Claimant's counsel seeks to be
relieved as attorney of record on the grounds that claimant has been
uncooperative in the prosecution of this matter. Counsel attaches a copy of an
undated letter from claimant which requests counsel to cease all legal work on
his case which he received on June 30, 2000. The court will not recite the
entire history of communications between the court and counsel, but suffice it
to say that from early 2001 through 2003, counsel was advised by both the Office
of the Clerk of the Court and chambers that he would have to file a properly
completed consent to change attorney form or move to be relieved as counsel
pursuant to CPLR 321 (b). Now, four years after first receiving his client's
letter, counsel has made said motion by way of an Order to Show Cause. This
court's Order to Show Cause signed May 19, 2004 specifically directed service in
the following manner "[l]et personal service of this order together with
the papers upon which it is based be made upon the claimant DAVID MORRIS and on
the defendant, STATE OF NEW YORK by certified mail, return receipt requested on
or before the 4th day of June, 2004 be deemed good and sufficient service."
It is well-settled that there must be a showing of good cause and
reasonable notice before an attorney will be permitted to terminate the
attorney/client relationship (Matter of Dunn, 205 NY 398, 403; Matter
of Jamieko A., 193 AD2d 409, 410; Code of Professional Responsibility DR
2-110 [22 NYCRR § 1200.15]). The court is not satisfied from the affidavit
of service submitted on this motion that claimant received reasonable
notification of counsel's application to withdraw since service did not comply
with the method ordered by the court. The court directed personal service of
the Order to Show Cause upon the claimant on or before June 4, 2004. The
affidavit of service upon claimant filed with the court merely indicates service
on him by affix and mail at 86-54 208th Street, Apt. 3D, Queens Village, New
York 11427. (CPLR 308 ). Additionally, counsel attaches a certified mail,
green receipt card, purportedly signed by claimant. Moreover, the court notes
that counsel contacted chambers by telephone on June 2, 2004 for a clarification
that the Order to Show Cause indeed required personal delivery on claimant,
while allowing service by certified mail, return receipt requested, on the
defendant. Quite simply, such methods of service, even if completed, were not
in compliance with this court's order of personal service and do not equate to
reasonable notice to claimant pursuant to this court's Order to Show Cause.
Finally, in the absence of reasonable notice, the court need not address the
factor of good cause.
Based upon the foregoing, the court finds that counsel has failed to make a
showing of reasonable notice to claimant and, as such, counsel's motion to
withdraw as attorney of record for claimant pursuant to CPLR 321 (b) (2), Motion
No. M-68463, will be DENIED without prejudice. In the event counsel wishes to
make a second attempt for such relief he must submit a new Order to Show Cause
with supporting papers.
Claim, filed August 25, 1999.
Order to Show Cause, Motion No. M-68463, dated May 17, 2004.
Affirmation of Allen S. Gold, Esq., in support of Order to Show Cause, affirmed
May 17, 2004, with attached exhibits.
Affirmation of James E. Shoemaker, in response to Order to Show Cause, dated
June 10, 2004, and filed June 14, 2004.
Letter from Alan S. Gold, Esq. to Court, dated June 16, 2004, enclosing copies
of Affidavits of Service of Order to Show Cause.