New York State Court of Claims

New York State Court of Claims

PIERCE v. THE STATE OF NEW YORK, #2004-019-586, Claim No. 104104, Motion No. M-68753


Motion to withdraw as counsel is granted with 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:
PHELAN, BURKE & SCOLAMIERO, LLPBY: Peter M. Scolamiero, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
October 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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] [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, 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 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 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 required.

October 19, 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 April 10, 2001.
  2. Verified Answer, filed May 21, 2001.
  3. Order to Show Cause, Motion No. M-68753, signed July 12, 2004.
  4. Affidavit of Peter M. Scolamiero, Esq., in support of Order to Show Cause, sworn to June 22, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in response to Order to Show Cause, dated September 14, 2004, and filed September 16, 2004.
  6. Supplemental Affidavit of Peter M. Scolamiero, Esq., for in camera review, sworn to October 13, 2004.