New York State Court of Claims

New York State Court of Claims

CARRIGAN v. THE STATE OF NEW YORK, #2004-019-573, Claim No. 108408, Motion No. M-68657


Counsel's motion to withdraw as counsel is granted; conditional order of dismissal.

Case Information

STACEY A. CARRIGAN, Individually and as Parent and Natural Guardian of JOHN DOUGLAS CARRIGAN, an infant The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
THE LAW FIRM OF SCARZAFAVA & BASDEKISBY: Theodoros Basdekis, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, The Law Firm of Scarzafava & Basdekis, move to withdraw as attorney of record pursuant to CPLR 321 (b) (2). Defendant State of New York (hereinafter "State") does not oppose counsel's request to withdraw, but does request a conditional order of dismissal. Claimant has not responded to this motion.

This claim was commenced by Stacey A. Carrigan, individually, and as parent and natural guardian of her infant son, John Douglas Carrigan, regarding abuse allegedly suffered by the infant while enrolled in a State licenced day care facility operated by Kerry J. Loucks-Eldred in Oneonta, New York. Claimant alleges that she selected said day care facility in part because the State "[h]ad issued and renewed the operating license of the aforesaid day care facility." (Claim, ¶ 6). The claim asserts a negligence cause of action on behalf of the infant, as well as a derivative claim on behalf of the mother. This claim was filed with the Clerk of the Court on October 16, 2003. The State filed a Verified Answer on November 17, 2003.

It is well-settled that an attorney who has agreed to represent a client may not withdraw from such representation upon the asking, but rather must obtain court approval. (CPLR 321 [b] [2]; Matter of Jamieko A., 193 AD2d 409, 410). In reviewing the request, a court should measure the attorney's request to terminate the attorney-client relationship against the well-settled standard of establishing "[a] good and sufficient cause and upon reasonable notice." (Matter of Dunn, 205 NY 398, 403 [emphasis added]; 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, this court signed an Order to Show Cause dated June 22, 2004 directing personal service of said Order and supporting papers on claimant. Counsel filed an Affidavit of Service demonstrating personal service on Stacey A. Carrigan on June 23, 2004 in compliance with said Order. The court has not received any response from claimant relative to this motion. On the basis of the affidavit of service, the court concludes that claimant received actual notification of the instant application.

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, affd 92 AD2d 1091, lv denied 59 NY2d 977). Here, counsel outlined the relevant facts and history between counsel and client in greater detail in an affirmation submitted for in camera inspection. In this court's view, counsel's related facts, including a lack of communication from the client, create irreconcilable differences between the attorney and client with respect to the proper course to be pursued in the litigation.[1] (Winters v Rise Steel Erection Corp., 231 AD2d 626; Sansiviero v Sanders, 117 AD2d 794, lv dismissed, 68 NY2d 805). 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.

Consequently, it is ORDERED that:

1. Claimant's counsel, The Law Firm of Scarzafava & Basdekis, is permitted to withdraw as attorney of record pursuant to CPLR 321 (b). Claimant's counsel shall serve a file-stamped copy of this Decision and Order upon the claimant by personal delivery and upon the State of New York by regular mail; and

2. Claimant's counsel shall file affidavits of such service on claimant and the State of New York with the Clerk of the Court. Upon the Clerk's receipt of said affidavits, counsel shall be relieved from representation of claimant.

3. Claimant shall, within 60 days of service upon her of a file-stamped copy of this Decision and Order, notify the Clerk of the Court and the State of New York in writing of her intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney; and

4. In the event claimant fails to appear pro se or by new counsel within the said 60 day period, the claim herein will be deemed dismissed for her default (22 NYCRR 206.15), and no further order of this court will be required.

September 7, 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 October 16, 2003.
  2. Verified Answer, filed November 17, 2003.
  3. Order to Show Cause, Motion No. M-68657, dated June 22, 2004.
  4. Affirmation of Theodoros Basdekis, Esq., in support of Order to Show Cause, dated June 15, 2004, with attached exhibits.
  5. In Camera Affirmation of Theodoros Basdekis, Esq., in support of Order to Show Cause, dated June 15, 2004.
  6. Affirmation of Carol A. Cocchiola, AAG, in response to Order to Show Cause, dated August 24, 2004, and filed August 26, 2004.

[1]The court does not review counsel's affirmation with an eye toward an ultimate determination of the merits of this case, rather counsel's representations are used solely for the purpose of evaluating the attorney-client relationship in this matter. In short, this court takes no position with regard to the merit of this claim.