New York State Court of Claims

New York State Court of Claims

SPALLANE v. THE STATE OF NEW YORK, #2005-015-003, Claim No. 105742, Motion No. M-69527


Court in the exercise of its discretion denied motion of claimant's counsel to be relieved where motion was made after completion of discovery and on the eve of trial.

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:
Maynard, O'Connor, Smith & Catalinotto, LLPBy: Robert A. Rausch, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Couch White, LLP
Nancy Lynn Ferrini, Esquire, of Counsel
Third-party defendant's attorney:

Signature date:
January 21, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


By order to show cause signed by this Court on December 17, 2004 the claimant's attorneys of record, Maynard, O'Connor, Smith & Catalinotto (Robert A. Rausch, Esquire, of counsel) seek to be relieved as claimant's attorneys in this matter pursuant to CPLR 321 (b) (2). Neither claimant nor the defendant formally opposed[1] the motion which is denied as provided below. Although a client may discharge an attorney without cause at any time, there must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney/client relationship (see, Matter of Dunn, 205 NY 398, 403; Lake v M.P.C. Trucking, 279 AD2d 813; Code of Professional Responsibility DR 2-110 [22 NYCRR § 1200.15]); People v Woods, 117 Misc 2d 1, 2). The court is satisfied from the affidavit of service submitted on the motion that claimant received reasonable notification of her attorneys' application to withdraw.

Although the affirmation of Robert A. Rausch in support of the motion sets forth factual allegations tending to prove that good cause exists to permit the law firm's withdrawal, the determination whether to permit withdrawal lies within the Court's discretion (People v Salquerro, 107 Misc 2d 155). It is incumbent upon the moving party to demonstrate that the underlying action is without merit, there has been a breakdown in the attorney/client relationship or that irreconcilable differences have arisen which would make it unreasonably difficult, if not impossible, for the attorney to carry out his or her employment effectively (Valente v Seiden, 244 AD2d 799, 800; Ashker v International Bus. Machs. Corp., 201 AD2d 765; see, Code of Professional Responsibility DR 2 -110 [c][1][a] [22 NYCRR § 1200.15 (c)(1)(i)] and DR 2-110 [c][1][d] [22 NYCRR § 1200.15 (c) (1) (iv)]).

While claimant's failure to keep her scheduled appointments and the other actions complained of by movant have undoubtedly damaged the attorney/client relationship it does not appear to the Court to have been irretrievably broken. Claimant's attorneys have expended much time and effort in guiding this matter through discovery to its current trial-ready status. When an attorney assumes the representation of a client with full knowledge of a prior attorney's court ordered withdrawal from the case due to the client's alleged failure to cooperate, the successor attorney assumes a risk that history may repeat itself. This is indeed what has happened here.

The nature of this case (alleged exposure to chemicals in the workplace) and the passage of time since its accrual in July/August 2000 militate against the further delay granting the instant motion would certainly engender. Moreover, claimant's alleged mental and emotional difficulties suggest that her interests would be best served by denying the motion and continuing her current legal representation.

The Court, therefore, denies the motion in the exercise of its discretion. Trial of this matter on February 16, 2005 shall proceed as scheduled.

Claimant, who informally requested the denial of this motion, must hereafter fully cooperate with her attorneys in the preparation of the case for trial and must be guided by their counsel and advice.

January 21, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated December 17, 2004;
  2. Affirmation of Robert A. Rausch Dated December 13, 2004 with exhibit;
  3. Letter dated January 7, 2005 from Susan Spallane.

[1]Five days subsequent to the return date set forth in the Order to Show Cause claimant faxed a letter to the Court requesting that the Court deny the motion.