RODGERS v. THE STATE OF NEW YORK, #2004-030-551, Claim No. 101505, Motion No.
JESSICA M. RODGERS, Individually and as Administratrix of the Estate of IAN BASIL DELONG RODGERS, Deceased
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
POWERS & SANTOLA, LLPBY: JOHN H. FISHER, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: VINCENT M. CASCIO , ASSISTANT ATTORNEY GENERAL
PINO & ASSOCIATES BY: BRIAN W. COLISTRA, ESQ. OF COUNSEL
July 20, 2004
See also (multicaptioned
The following papers, numbered 1 to 8, were read and considered on Counsel
Defendant's application, brought by Order to Show Cause pursuant to Civil
and Rules §321, to be relieved as counsel:
1,2 Order to Show Cause, Affirmation in Support by Brian W. Colistra, from Pino
& Associates, LLP, Attorneys for Defendant, dated March 19, 2004 and
Affirmation by John H. Fisher, from Powers & Santola, LLP, Attorneys for
Claimant, dated April 13, 2004
Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General,
dated April 12, 2004 and attached exhibits
Reply Affirmation by Brian W. Colistra dated April 15, 2004 and attached
Supplemental Reply Affirmation by Brian W. Colistra dated April 22, 2004 and
7,8 Filed Papers: Claim, Answer
After carefully considering the papers submitted and the pertinent law the
application is disposed of as follows:
This is a claim against the Defendant State of New York for the pain, suffering
and wrongful death of Claimant's decedent, Ian Basil Delong Rodgers, who died
on September 15, 1999. The claim is based upon the Defendant's alleged violation
of § 241(6) Labor Law, and 12 NYCRR § 23-9.7(d). The widow's
derivative claim is also pled. Trial commenced on the liability phase on
February 11, 2002, and continued through February 15, 2002. After Claimant
rested on February 15, 2002, the trial was adjourned to April 22, 2002 due to a
Court scheduling conflict.
Thereafter, a series of stays were requested by Defendant and granted by this
Court based upon the issuance of an Order, on March 28, 2002, by the
Commonwealth Court of Pennsylvania granting the Petition of the Insurance
Commissioner of the Commonwealth of Pennsylvania placing Legion Insurance
Company (hereafter Legion), the Protective Liability and Commercial General
Liability carrier for the general contractor, A. Servidone, Inc. (hereafter
Servidone), and the entity paying for the defense of the State of New York, in
rehabilitation, effective April 1, 2002 pursuant to 40 P. S. § 221.1 et
seq. Servidone, obtained its Protective Liability and Commercial General
Liability policy through Legion Insurance Company as required by its contract
with the State. Under the terms of the policy, the New York State Department of
Transportation is named as an additional insured. Legion Insurance therefore
pays for the defense of the State of New York and is the entity responsible for
tender of any settlement or judgment monies.
In addition to staying "all court actions . . . currently or hereafter pending
against Legion . . . ", the Pennsylvania Order further stays ". . . [a]ll
court actions, arbitrations and mediations currently or hereafter pending
against an insured of Legion in the Commonwealth of Pennsylvania or elsewhere .
. . for ninety (90) days from the effective date of this Order or such
additional time as the Rehabilitator may request." It also provides that ". . .
[n]o judgment, order or arbitration award against Legion or an insured of Legion
entered after the date of filing of the Petition for Rehabilitation . . . need
be considered as evidence of liability or quantum of damages by the
Extensions of the stay were granted from July, 2002 until January, 2003, when
this Court denied Counsel for the Defendant's application for a further
extension. [Rodgers v State of New York, Claim No.101505, Motion No. M-66007,
(Scuccimarra, J., filed January 24, 2003)]. This Court stated:
"When the Court granted the ninety (90) day stay of the trial, and the
subsequent ninety (90) day stay, it was anticipated that at least some movement
would be had with respect to progress in Pennsylvania, or commencement of
proceedings in New York State. Instead, it appears, matters may be even more
prolonged if the insurance company is now involved in liquidation as opposed to
rehabilitation. At this juncture, principles of fairness outweigh whatever
principles of comity applied previously.
Counsel for Claimant correctly argues that the claim has been ready for trial
since December 6, 2000. Any further extensions of the stay can only operate to
the prejudice of Claimant, and would no longer be "just" within the meaning of
§2201 Civil Practice Law and Rules. See, Haenel v November &
November, 144 AD2d 298, 300 (1st Dept 1988); See also Stinson v
Hance, ___F Supp ___, 2002 WL 31834464 (SDNY 2002). Witnesses to the
accident may become ill, or die, or their memories may become less acute. The
Claimant, Jessica Rodgers, is a widow deprived of the benefit of her husband's
support since his death in 1999. Whatever goals she may have had in terms of
pursuit of a higher education - referred to in Counsel's Affirmation - have been
side tracked by the necessity of earning a reasonable income. This is a
bifurcated trial. How the Commonwealth of Pennsylvania resolves Legion's
liquidation is only peripherally - if at all - impacted by resolution of
liability against Defendant.
As noted in this Court's Interim Decision and Order, it is the State of New
York who is the Defendant in this action: not the insurance company. As such,
the Attorney General of the State of New York has the primary responsibility to
appear and defend, whatever contractual arrangements may have been made.
See §63 Executive Law; Beedenbender v State of New York, 100
Misc 2d 482, 483 (Ct Cl 1979) . . .
Accordingly, Defendant's application for a stay of the trial of this matter is
hereby, in all respects, DENIED. The continued liability trial shall resume on
Monday, May 19, 2003, at 10:00 a.m.
Trial was scheduled for May 19, 2003 but was stayed by the Appellate Division
when Defendant's attorneys appealed the January, 2003 denial of the further
extension of the stay on or about March 13, 2003.
On July 25, 2003 the Commonwealth Court of Pennsylvania declared Legion
insolvent, lifted the Rehabilitation stay and ordered liquidation.
Based upon Legion's new status, and while the appeal of this Court's January,
2003 Order was still pending, the NYS Superintendent of Insurance applied for
appointment as Ancillary Receiver of Legion in the State of New York pursuant to
Article 74 of the Insurance Law. In an Order filed August 22, 2003, the
Honorable Nicholas Figueroa appointed Gregory V. Serio, the Superintendent of
Insurance of the State of New York, as Ancillary Receiver. [Affirmation in
Support by Brian Colistra, Exhibit A]. This Order, too, contained a stay of all
proceedings for a period of one-hundred eighty (180) days from the date of entry
of his order. The language in the Order provides: "All parties to lawsuits, in
which LEGION is obligated to defend a party pursuant to or by virtue of an
insurance policy or in which LEGION is the excess or umbrella layer of insurance
and the primary or other underlying insurer has tendered or offered its full
policy limits or where said policy limits have been exhausted by payment of the
underlying insurer's aggregate, are enjoined and restrained from proceeding in
all actions at law, suits in equity, special or other proceeding for 180 days
from the date of entry of this order, including, but not limited to, proceedings
with any discovery, pre-trial conference, trial, application for judgment, or
proceedings on judgment or settlement." By its terms, the stay imposed therein
expired on February 18, 2004.
Based upon Justice Figueroa's Order, counsel for the Defendant made a further
application for a stay of proceedings in this Court. [Rodgers v State of New
York, Claim No. 101505, Motion No. M-67421 (Scuccimarra, J., February 3, 2004)].
When granting the request, this Court ordered:
". . . that all proceedings and the continued trial of the present claim is
hereby stayed until March 26, 2004; and it is further
ORDERED, that in the interim, should the stay imposed by Justice Figueroa be
continued or expire without renewal, or should any other activity occur with
respect to the proceedings by the Ancillary Receiver, the parties are directed
to immediately advise the Court, in writing, of the status, and to make whatever
further application is warranted under the circumstances."
Defendant withdrew its appeal of this Court's January, 2003 Order lifting the
stay in the interim. At this point, the stay imposed based on Justice
Figueroa's Order, expired on February 18, 2004 as noted. Counsel for the
Defendant notes that when he contacted the New York State Insurance Department
Liquidation Bureau regarding the status of Justice Figueroa's stay, counsel was
advised that the stay the Court imposed had been lifted.
DEFENDANT'S COUNSEL'S APPLICATION TO WITHDRAW
And here we are again. Counsel for Defendant seeks leave to withdraw as
attorneys pursuant to Civil Practice Law and Rules §321. He argues that he
has been informed by the Liquidation Bureau that Pino & Associates, LLP
would be allowed to remain as defense counsel in accordance with the State of
New York Insurance Department Defense Fee Schedule and Billing Guidelines,
providing for a $500.00 per diem fee for trials. While listing in some detail
the amount of time he and his firm have spent on this claim, including his
review of "tens of thousands of pages of documents associated with . . . [the]
construction project," his interviews of all the witnesses, and the theory of
the case he developed and pursued, his own very direct and continued involvement
in the additional procedural morass that has haunted this matter, Counsel then
asks to be relieved essentially because in his view it would not be financially
feasible to continue to represent Defendant given this fee schedule. No
reference to the standards for allowing withdrawal of counsel of record, or
legal authority for such permission, is presented as an initial matter.
It is well settled that non-payment of counsel fees alone does not entitle an
attorney to withdraw from representing a client. See generally Cashdan
, 243 AD2d 598 (2d Dept 1997); George v George
, 217 AD2d 913
(4th Dept 1995); cf. Tartaglione v Tiffany
, 280 AD2d 543 (2d Dept
2001). Indeed, in a case where discovery had been completed and a note of issue
had been filed, the Court would not permit the attorneys for a defendant to
withdraw because it ". . . would further delay the resolution of . . . [the]
action . . . (citations omitted)
and would not promote judicial economy."
George v George
, at 913; See also Torres v
, 169 AD2d 829 (2d Dept 1991).
Counsel for the Defendant relies on Cullen v Olins Leasing, Inc., 91
AD2d 537 (1st Dept 1982) for the proposition that it is in the same position as
the defense attorneys there, who had been retained by an insurer subsequently
found to be insolvent, and were allowed to withdraw from representing the
insured when the insured would not assume responsibility for payment of
counsel's fees. In this case, however, the State of New York Insurance
Department has indicated that if coverage were established it would pay counsel
fees in accordance with a fee schedule whereby counsel are paid a $500.00 per
Counsel for Defendant also indicates that there is some dispute as to whether
coverage by Legion is confirmed in this case. [See Reply Affirmation in
Support by Brian W. Colistra, Counsel for Defendant, Exhibit C]. As noted by
the Assistant Attorney General, however, it is Servidone, Inc., the construction
contractor herein, who owes the defense to the State of New York pursuant to its
contract. [Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney
General, Exhibits A, B and D]. Assuming these purported coverage issues ripen,
a declaratory judgment action is the appropriate vehicle for determining these
issues, not an application to withdraw as counsel.
Accordingly, Counsel for the Defendant's application (M-68224), brought by
Order to Show Cause is in all respects denied.
July 20, 2004
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
Counsel's attempt to withdraw as counsel on
the eve of a contempt adjudication based upon information imparted by his client
purportedly violative of the Code of Professional Responsibility denied. The
trial court's exercise of discretion affirmed on appeal, because for the trial
court to have ruled ". . . otherwise would allow the defendant to manipulate the
pace of litigation to his liking in this manner. . . citation omitted).