New York State Court of Claims

New York State Court of Claims

SCALERCIO v. THE STATE OF NEW YORK , #2004-030-537, Claim No. 107230, Motion No. M-68503


Synopsis



Case Information

UID:
2004-030-537
Claimant(s):
JULIUS SCALERCIO
Claimant short name:
SCALERCIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107230
Motion number(s):
M-68503
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
NISHMAN & SAVITSKY, ESQS.BY: ROBERT W. NISHMAN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 16, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 5 were read and considered on Counsel for


Claimant's application, brought by Order to Show Cause, to be relieved as Counsel for Claimant:

1,2 Order to Show Cause, Affirmation of Robert W. Nishman, Counsel for Claimant, and attached exhibits

  1. Letter of Elyse J. Angelico, Assistant Attorney General, dated June 7, 2004
4,5 Filed Papers: Claim; Answer

Robert W. Nishman, Counsel for Claimant herein, asks to be relieved as Counsel based upon irreconcilable difficulties with Claimant. The Affirmation of Robert W. Nishman states "We have reviewed the medical evidence in this case with our experts and made recommendations to the claimant which he has rejected. As a result of the above, we have encountered irreconcilable difficulties with the claimant, which makes our continued involvement in the case impossible."

Julius Scalercio, the Claimant herein, has been duly served with a copy of this


application. In previous correspondence he indicated that he is "in the process of obtaining new


counsel. As soon as said is done they will be in contact with you." To date counsel has not been


contacted either by other counsel or by Claimant to request a transfer of the file.


There must be a showing of good cause and reasonable notice before an attorney will be


permitted to terminate the attorney-client relationship. See e.g. J. M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929, 530 NYS2d 355 (4th Dept 1988). What constitutes good cause is not an objective determination, but rather lies within the sound discretion of the trial court. See e.g. People v Salquerro, 107 Misc 2d 155, 433 NYS2d 711 (Sup Ct, NY County 1980).

The attorney general's office has indicated that it takes no position with respect to this application.

In view of the foregoing, I find that there has been a showing of good cause to be relieved.

Accordingly, IT IS ORDERED that motion no. M-68503 be granted to the extent that:
1. Permission to withdraw is hereby granted to Nishman & Savitsky, Esqs., upon satisfaction of the requirements of ¶2 hereof.
2. Within fourteen (14) days of the filing of this Decision and Order, Robert W. Nishman, Esq. shall serve upon Julius Scalercio a file-stamped copy of this Decision and Order by certified mail, return receipt requested and by regular mail. Counsel shall thereafter promptly file an affidavit of such service, with the return receipt attached, with the Clerk of the Court. Only upon the Clerk's receipt of such affidavit with return receipt, shall Nishman & Savitsky be relieved from representation of Claimant; and
3. No further proceedings shall take place with respect to this claim until ninety (90) days after the filing of this Decision and Order, so as to permit Julius Scalercio to retain new counsel if desired. Julius Scalercio shall, within ninety 90 days of the filing of this Decision and Order, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (Elyse J. Angelico, AAG, New York State Department of Law, 101 East Post Road, White Plains, New York 10601) in writing of his intention to proceed without counsel (pro se), or file a notice of appearance by a new attorney.
4. If Julius Scalercio fails to so notify the Clerk of the Court or appear by new counsel within such 90-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.

July 16, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims