New York State Court of Claims

New York State Court of Claims

MORRIS v. THE STATE OF NEW YORK, #2004-019-563, Claim No. 100962, Motion No. M-68463


Counsel's motion to withdraw as counsel is denied without prejudice.

Case Information

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):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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." (Emphasis added).

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 [4]). 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.

July 15, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed August 25, 1999.
  2. Order to Show Cause, Motion No. M-68463, dated May 17, 2004.
  3. Affirmation of Allen S. Gold, Esq., in support of Order to Show Cause, affirmed May 17, 2004, with attached exhibits.
  4. Affirmation of James E. Shoemaker, in response to Order to Show Cause, dated June 10, 2004, and filed June 14, 2004.
  5. Letter from Alan S. Gold, Esq. to Court, dated June 16, 2004, enclosing copies of Affidavits of Service of Order to Show Cause.