New York State Court of Claims

New York State Court of Claims

ROA v. THE STATE OF NEW YORK, #2004-019-577, Claim No. 101172, Motion No. M-68842


Motion to withdraw as counsel is granted; conditional order of dismissal.

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: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, Andrew F. Plasse, Esq., moves to withdraw as attorney of record for claimant pursuant to CPLR 321 (b) (2) because of irreconcilable differences with respect to the proper course to be pursued in this matter. Defendant takes no position on the instant application for permission to withdraw. Claimant has not responded to this motion.

This claim arose in December 1997 when claimant became ill while incarcerated in Elmira Correctional Facility. The claim alleges negligent medical treatment, a delay in providing medical treatment, as well as deliberate medical indifference. Claimant filed this claim pro se with the Clerk of the Court on September 30, 1999. The State filed a Verified Answer on November 3, 1999. Nearly four years later, on September 26, 2003, Andrew F. Plasse, Esq. filed a Notice of Appearance for claimant.

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 July 28, 2004 directing the service of the moving papers on claimant by certified mail, return receipt requested, and regular mail and on the State by regular mail by August 11, 2004. Counsel has submitted proof of service on claimant.[1] The State has conceded service. (Letter of Joseph F. Romani, AAG dated September 17, 2004). On the basis of the affidavits of service establishing service of these motion papers, the court concludes that claimant received reasonable 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). Here, counsel submitted an in camera affirmation outlining in great detail the relevant facts and history between counsel and client. In this court's view, counsel has related more than sufficient grounds from which this court can conclude that irreconcilable differences exist between this counsel and claimant. (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. Andrew F. Plasse, Esq. is permitted to withdraw as attorney of record for claimant pursuant to CPLR 321 (b). Claimant's counsel shall serve a file-stamped copy of this Decision and Order by certified mail, return receipt requested, and regular mail on claimant; and upon the State of New York by regular mail, within 30 days of the filing of this Decision and Order; and

2. Claimant's counsel shall file such proof of 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 him 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 his 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 his default (22 NYCRR 206.15), and no further order of this court will be required.

September 21, 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 September 30, 1999.
  2. Verified Answer, filed November 3, 1999.
  3. Notice of Appearance, filed September 26, 2003.
  4. Order to Show Cause, Motion No. M-68842, signed July 28, 2004.
  5. Affirmation of Andrew F. Plasse, Esq., in support of Order to Show Cause, dated June 24, 2004.
  6. In Camera Affirmation, of Andrew F. Plasse, Esq., in support of Order to Show Cause, dated July 23, 2004, and received September 16, 2004, with attached exhibits.
  7. Affirmation of Joseph F. Romani, AAG, in response to Order to Show Cause, dated September 14, 2004, and filed September 16, 2004.
  8. Letter from Joseph F. Romani, AAG to Court, dated September 17, 2004, and received September 20, 2004.

[1]The green receipt card indicates it was received by the Great Meadow Correctional Facility on August 13, 2004. Local post offices provide correctional facilities with bulk delivery service only and, as such, it is the correctional facility's responsibility to deliver mail to each individual inmate. (7 NYCRR § 722.2).