New York State Court of Claims

New York State Court of Claims

ROSSE v. THE STATE OF NEW YORK, #2004-028-559, Claim No. 105965, Motion No. M-68785


Synopsis


Counsel's application to be relieved as counsel is granted.


Case Information

UID:
2004-028-559
Claimant(s):
WILLIAM ROSSE
Claimant short name:
ROSSE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105965
Motion number(s):
M-68785
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
HIGGINS AND MORAN, PLLCBY: Richard T. Moran, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis M. ActonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 2, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on the unopposed motion of claimant's attorneys, Higgins & Moran, PLLC, to be relieved as counsel for Claimant regarding Claim No. 105965:

1) Order to Show Cause filed July 16, 2004 and Supporting Affidavit of Richard T. Moran, Esq., with annexed Exhibits A-K


2) Letter of No Opposition of Assistant Attorney General Dennis M. Acton received

July 23, 2004


Claimant alleges he failed to receive adequate medical care when physical therapy was delayed for 14 weeks following a surgical procedure[1].

The motion was commenced by Order to Show Cause (CPLR 321[b][2]), and counsel was directed to serve Claimant by ordinary mail and by certified mail, return receipt requested and proof of service consistent with the Court's directive has been filed. Claimant has not responded to the motion in any fashion. Defendant's counsel did not oppose the instant application for permission to withdraw.

In his affidavit in support Attorney Moran sets forth that subsequent to the late file application, medical records and deposition testimony have become available and have been reviewed by Claimant's expert. Based upon the expert's review of the new materials he is no longer able to testify the treatment afforded Claimant deviated from accepted medical care. Moran further states that when he met with his client to advise him of these developments and the impact of same upon the case, the client asserted the records were fabrications, accused Moran of being a dishonest lawyer and left the office (Moran Affidavit ¶¶ 21-24).

Although a client may discharge an attorney, with or without cause, at any time, an attorney of record may withdraw or be changed only in a manner prescribed by statute (Moustakas v Bouloukos, 112 AD2d 981, 983; see CPLR 321 [b]). Where, as here, the permission of a court is required, the attorney must prove that his or her client had reasonable notice and that there is good and sufficient cause for the withdrawal (Catrone v Catrone, 92 AD2d 559; 7 NY Jur 2d, Attorneys at Law, §74). Here, it is abundantly evident that counsel has made the requisite showing and the motion is granted.

Prosecution of Claim No. 105965 is stayed for sixty days from the filing of this Decision in order to permit Claimant time to retain new counsel. If by that time an appearance of counsel has not been filed, Claimant will be deemed to appear pro se. Claimant is reminded that he is required to inform the Clerk's office in Albany, in writing, of any change of address.

Additionally, a conference on this claim is scheduled for November 9, 2004 at 12:30 p.m. at the Court of Claims, Justice Building - 7th floor, Albany, NY where Claimant (either by counsel or pro se) and Defendant's attorney shall appear in person. Should Claimant fail to appear for the scheduled preliminary conference, this Court will dismiss the claim (22 NYCRR §206.10[f]).

It is ordered that, within 15 days of the filing date of this Decision and Order, the attorney is directed to file an affidavit with the Chief Clerk's office indicating that service of a copy of this Decision and Order was made upon Claimant by certified mail, return receipt requested and by ordinary mail to Claimant's last known address and that the attorney had turned over the complete file to Claimant.

September 2, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court is familiar with the allegations of this Claim having previously granted Claimant permission to late file his Claim (Rosse v State of New York, Ct Cl, Sise, J., Claim No. None, UID#2002-028-021, Motion No. M-64522).