The law firm of Phelan, Burke & Scolamiero, LLP, moves to withdraw as
attorneys of record for claimants 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. Claimants have not responded to this motion.
This claim arose on April 19, 1999, when claimant Patrick Pierce was operating
his vehicle and was involved in an automobile accident with another vehicle
operated by an employee of the State of New York (hereinafter "State").
Claimants filed this claim with the Clerk of the Court on April 10, 2001 and
served the defendant by way of certified mail, return receipt requested, on
April 11, 2001. The State filed a Verified Answer on May 21, 2001. Thereafter,
the parties engaged in discovery.
Now, the law firm of Phelan, Burke & Scolamiero, LLP (hereinafter "Phelan
Firm") moves to be relieved as claimants' counsel. This court signed an Order
to Show Cause dated July 12, 2004 directing the service of the moving papers on
claimants by personal delivery and on the State by regular mail. The Phelan
Firm has submitted affidavits of service demonstrating service in accordance
with said Order.
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, the court has not received any
response from claimants relative to this motion. However, on the basis of the
affidavits of service showing personal delivery of these motion papers on
claimants as directed, the court concludes that claimants 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 a supplemental in camera affirmation outlining the relevant
facts and history between counsel and claimants. In this court's view, counsel
has related sufficient grounds from which this court can conclude that
irreconcilable differences exist between counsel and claimants with respect to
the manner in which the case should proceed. Additionally, counsel indicates
that claimants have failed to respond to attempts to contact them for the past
year. In this court's view, counsel relates facts which create irreconcilable
differences between the attorney and client with respect to the proper course to
be pursued in the litigation. (Winters v Rise Steel Erection Corp., 231
AD2d 626; Sansiviero v Sanders, 117 AD2d 794, lv dismissed, 68
Based upon the foregoing, the court finds that counsel has made a showing of
good and sufficient cause for withdrawal upon reasonable notice to claimants.
Consequently, it is ORDERED that:
1. The Phelan Firm is permitted to withdraw as attorneys of record for
claimants pursuant to CPLR 321 (b). The Phelan Firm shall serve a file-stamped
copy of this Decision and Order upon both claimants by personal service and upon
the State of New York by regular mail; and
2. Claimants' counsel shall file affidavits of such service with the Clerk of
the Court. Upon the Clerk's receipt of said affidavits, counsel shall be
relieved from representation of claimants.
3. Claimants shall, within 60 days of service upon them 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 their intention to proceed pro se (without counsel) or
file a notice of appearance by a new attorney; and
4. In the event claimants fail to appear pro se or by new counsel within
the said 60 day period, the claim herein will be deemed dismissed for their
default (22 NYCRR 206.15), and no further order of this court will be