New York State Court of Claims

New York State Court of Claims

RODGERS v. THE STATE OF NEW YORK, #2004-030-551, Claim No. 101505, Motion No. M-68224


Case Information

JESSICA M. RODGERS, Individually and as Administratrix of the Estate of IAN BASIL DELONG RODGERS, Deceased
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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 20, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read and considered on Counsel for

Defendant's application, brought by Order to Show Cause pursuant to Civil Practice Law

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 attached exhibit

  1. Affirmation by John H. Fisher, from Powers & Santola, LLP, Attorneys for Claimant, dated April 13, 2004
  1. Affirmation in Opposition by Vincent M. Cascio, Assistant Attorney General, dated April 12, 2004 and attached exhibits
  1. Reply Affirmation by Brian W. Colistra dated April 15, 2004 and attached exhibits
  1. Supplemental Reply Affirmation by Brian W. Colistra dated April 22, 2004 and attached exhibits
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 Rehabilitator."

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.
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 v 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, supra, at 913; See also Torres v Torres, 169 AD2d 829 (2d Dept 1991).[1]

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 diem payment.

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
White Plains, New York

Judge of the Court of Claims

[1] 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)."