New York State Court of Claims

New York State Court of Claims

FELICIANO v. THE STATE OF NEW YORK, #2004-030-564, Claim No. NONE, Motion No. M-68504


Synopsis



Case Information

UID:
2004-030-564
Claimant(s):
FELIX FELICIANO
Claimant short name:
FELICIANO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68504
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
NISHMAN & SAVITSKYBY: ROBERT W. NISHMAN
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: JOHN M. HEALEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 11, 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[1] 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 dated April 29, 2004

  1. Affidavit in Opposition of Felix Feliciano, Claimant, sworn to June 1, 2004
  1. Reply Affirmation of Robert W. Nishman, Counsel for Claimant, dated June 16, 2004 with attached exhibit
  1. Filed papers: Feliciano v State of New York, Claim No. NONE Motion No. M-67055 (Scuccimarra, J. October 16, 2003).
After carefully considering the papers submitted and the pertinent law the application is disposed of as follows:

Robert W. Nishman, Counsel for the Claimant herein, asks to be relieved as Counsel based upon what has become an adversarial relationship with his client. The adversity stems from Counsel's failure to timely serve a Notice of Intention and to timely serve and file a Claim setting forth Claimant's assertions of personal injury suffered while he was in the custody of the New York State Department of Correctional Services on July 25, 2002 when a window frame crashed on his head at Sing Sing Correctional Facility.

In a Decision and Order filed October 16, 2003, Claimant's application for late claim relief - prepared by Counsel - was denied, and thereafter, Counsel for Claimant filed a Notice of Appeal of that determination. The time within which to perfect that appeal has been automatically extended by the Appellate Division, Second Department, to August 16, 2004. [Reply Affirmation by Robert W. Nishman, Exhibit 1].

After denial of the application for late claim relief, it appears that correspondence between Claimant and his attorney concerning continued representation began, first commencing with indications that Claimant would not cooperate in securing information Counsel hoped Claimant could obtain from the correctional facility to establish notice of the dangerous condition, as well as indications of Claimant's intent to sue the attorney for malpractice. Counsel suggested Claimant obtain other counsel at the latest on March 18, 2004, when he wrote a letter to Claimant that appears to reflect previous discussions concerning the breakdown of communication, and suggestions to obtain other counsel.

Claimant's Affidavit in Opposition confirms that there has been a breakdown of the attorney/client relationship, by its recitation of the fact that Counsel's failures have prevented his being ". . . able to litigate my meritorious claim . . . " [Affidavit in Opposition, ¶4]. He argues that Counsel should not have been asking him to obtain information from the correctional facility, and now should not be able to be relieved without perfecting the appeal. Claimant states: "The fact that I have sent a claim letter to counsel evincing an intent to bring an action against them for legal malpractice is entirely irrelevant to counsel's obligation to perfect my appeal." [Affidavit in Opposition, ¶ 12].

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 (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 (NY Co Sup Ct 1980).

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

Accordingly, it is ORDERED, that motion no. M-68504 is granted to the extent that:
1. Permission to withdraw from representation of Claimant in this Court is hereby granted to Nishman & Savitsky, Esq., 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 Felix Feliciano 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 proposed claim in this Court until ninety (90) days after the filing of this Decision and Order, so as to permit Felix Feliciano to retain new counsel if desired.

It is noted that Counsel would appear to still be Attorney of Record in the Appellate Division unless and until Counsel makes the appropriate application in that Court.


August 11, 2004
White Plains, New York

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




[1] An additional sur-reply affidavit by Claimant was filed after the return date of the motion and has not been considered.