New York State Court of Claims

New York State Court of Claims

WAXTER v. THE STATE OF NEW YORK, #2004-032-039, Claim No. 102256, Motion No. M-68239


Case Information

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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


By an order dated January 30, 2004, the Court dismissed Claim No. 102256 because claimant failed to respond to an earlier order, issued pursuant to CPLR 3216, requiring that claimant file a note of issue within 90 days. That earlier order was served upon counsel for claimant, Anthony Emengo, Esq., of Emengo & Harlowe, in New York City. No note of issue was filed, and there was no other contact or communication with claimant's counsel or claimant himself after the order was served. Accordingly, the claim was dismissed. Another attorney who now represents claimant, Andrew F. Plasse, Esq., has now moved for an order restoring the claim to the calendar and substituting him as claimant's attorney of record.

This claim arose at Adirondack Correctional Facility in April 1997. It is alleged that claimant was forced to participate in a non-consensual sex act with a Correction Officer. Claimant has submitted an affidavit in which he sets forth facts that, if proven, would support a viable cause of action.

Both claimant and Mr. Plasse, the counsel representing him on this motion, state in affidavits that they have been unable to make any contact with claimant's original counsel, Anthony Emengo, Esq. since September 2002. Both have made several attempts to make contact by letter and by telephone, and when Mr. Plasse went to the location of Mr. Emengo's office, the landlord stated that he was no longer a tenant. The Court's original order was mailed to Mr. Emengo in July 2003 and was not returned to the Court, but letters sent by Mr. Plasse in December 2003 and February 2004 were returned to him. The telephone number listed by Mr. Emengo is now disconnected. Mr. Plasse also contacted the New York State Office of Court Administration, which registers attorneys, and was told that they have no other address listed for Mr. Emengo and, in addition, that he failed to pay his registration fees in August 2003.

Claimant states in his affidavit that he has had no contact with Mr. Emengo since September 2002, despite many attempts to contact the lawyer, and that he was not aware of the 90 day order issued in October 2003. Claimant also states that he has been unable to reach Mr. Emengo, despite many attempts to contact him. Claimant further states that it is his express desire that from this point on, Mr. Plasse represent him.

The method for substituting counsel laid out in CPLR 321(b) requires that a substitution form be signed by the party and by the retiring attorney. That is not possible in this instance. A party, however, may discharge his or her attorney at any time, with or without cause (Rivardeneria v New York City Health and Hospitals Corp., 306 AD2d 394 [2d Dept 2003]), and claimant's statements in his affidavit can easily be read as a statement that he has terminated the employment of Mr. Emengo.

In the situation presented here, the Court has no hesitation in ordering this claim restored to the active calendar and in directing that Mr. Plasse be allowed to file a notice of appearance as claimant's representative. As soon as that step is taken, counsels for claimant and for the State should contact my Chambers to schedule a telephone conference with the Court.

June 4, 2004
Albany, New York

Judge of the Court of Claims