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] ; 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.
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
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
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;
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
Claim, filed September 30, 1999.
Verified Answer, filed November 3, 1999.
Notice of Appearance, filed September 26, 2003.
Order to Show Cause, Motion No. M-68842, signed July 28, 2004.
Affirmation of Andrew F. Plasse, Esq., in support of Order to Show Cause, dated
June 24, 2004.
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
Affirmation of Joseph F. Romani, AAG, in response to Order to Show Cause, dated
September 14, 2004, and filed September 16, 2004.
Letter from Joseph F. Romani, AAG to Court, dated September 17, 2004, and
received September 20, 2004.