New York State Court of Claims

New York State Court of Claims

DOYLE v. THE STATE OF NEW YORK, #2005-019-527, Claim No. 105651, Motion No. M-69886


Synopsis


Motion to withdraw as counsel is granted; conditional order of dismissal.

Case Information

UID:
2005-019-527
Claimant(s):
DANIEL DOYLE
Claimant short name:
DOYLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105651
Motion number(s):
M-69886
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CARRO, CARRO & MITCHELL, LLPBY: Bartly L. Mitchell, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 12, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Carro, Carro & Mitchell, LLP, move to withdraw as attorneys of record for claimant pursuant to CPLR 321 (b) (2) because of irreconcilable differences with respect to the proper course to be pursued in this matter. The State of New York does not oppose counsel's application for permission to withdraw, but requests a 60-day conditional order of dismissal in the event claimant fails to substitute new counsel within that time frame. Claimant has not responded to this motion.

This claim arose on March 3, 2000 at Woodbourne Correctional Facility when a bathroom sink broke injuring claimant. A notice of intention was served on the Attorney General's Office on May 25, 2000. A claim alleging a negligence cause of action was filed with the Clerk of the Court on February 25, 2002. The State filed a Verified Answer on March 27, 2002. The parties have engaged in discovery, although no note of issue has ever been filed.


It is well-settled that an attorney who has agreed to represent a client may not withdraw from such representation upon the asking, but rather must obtain court approval. (CPLR 321 [b] [2]; Matter of Jamieko A., 193 AD2d 409, 410). In reviewing the request, a court should measure the attorney's request to terminate the attorney-client relationship against the well-settled standard of establishing "[a] good and sufficient cause and upon reasonable notice." (Matter of Dunn, 205 NY 398, 403; emphasis added; see also, Disciplinary Rules of the Code of Professional Responsibility DR 2-110 [22 NYCRR 1200.15]).


With respect to the issue of reasonable notice, this court signed an Order to Show Cause dated January 26, 2005 directing the service of the moving papers on claimant and the State by regular mail and certified mail, return receipt requested. Counsel has submitted an affidavit of service establishing service on both claimant and the State by regular mail and certified mail, return receipt requested, in compliance with said Order to Show Cause.[1] On the basis of the affidavits of service establishing service of these motion papers, the court concludes that claimant received reasonable notification of the instant application.


The requisite showing of good cause has been described not as an objective determination, but rather as being within the sound discretion of the trial court. (People v Salquerro [Albaracon], 107 Misc 2d 155). Here, counsel has submitted a letter for an in camera review that he wrote to claimant dated October 23, 2002 which outlines irreconcilable differences between counsel and claimant. Additionally, counsel avers that claimant's father, Joseph Doyle, was aware of counsel's desire to withdraw and, in fact, picked up claimant's file from the firm signing a release to that effect on January 30, 2003. (Affirmation of Bartly L. Mitchell, Esq., Exhibit G). Although the court does not condone counsel's delay in requesting this relief, counsel has related more than sufficient grounds from which this court can conclude that irreconcilable differences exist between this counsel and claimant. (Winters v Rise Steel Erection Corp., 231 AD2d 626; Sansiviero v Sanders, 117 AD2d 794, lv dismissed, 68 NY2d 805).


Based upon the foregoing, the court finds that counsel have made a showing of good and sufficient cause for withdrawal upon reasonable notice to claimant. Consequently, it is ORDERED that:


1. Carro, Carro & Mitchell, LLP, is permitted to withdraw as attorneys of record for claimant pursuant to CPLR 321 (b). Carro, Carro & Mitchell, LLP, shall serve a file-stamped copy of this Decision & Order by certified mail, return receipt requested, and regular mail on claimant; and upon the State of New York by regular mail, within 30 days of the date of filing of this Decision & Order; and


2. Carro, Carro & Mitchell, LLP, shall file proof of service on claimant and the State of New York with the Clerk of the Court. Upon the Clerk's receipt of said proofs of service, counsel shall be relieved from representation of claimant.


3. Claimant shall, within 60 days of service upon him of a file-stamped copy of this Decision & Order, notify the Clerk of the Court and the State of New York in writing of his intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney; and


4. In the event claimant fails to appear pro se or by new counsel within the said 60 day period, the claim herein will be deemed dismissed for his default (22 NYCRR 206.15), and no further order of this court will be required.



April 12, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Claim, filed February 25, 2002.
  2. Verified Answer, filed March 27, 2002.
  3. Order to Show Cause, Motion No. M-69886, dated January 26, 2005, and filed March 11, 2005.
  4. Affirmation of Bartly L. Mitchell, Esq., in support of motion, dated January 12, 2005, with attached exhibits.
  5. Letter from Mr. Mitchell to Mr. Doyle dated October 23, 2002, submitted to the court for in camera review.
  6. Affirmation of Joseph F. Romani, AAG, in response to motion, dated February 23, 2005, and filed February 28, 2005.

[1]The green receipt card indicates it was received by the Mid-Orange Correctional Facility on February 4, 2005. Local post offices provide correctional facilities with bulk delivery service only and, as such, it is the correctional facility's responsibility to deliver mail to each individual inmate. (7 NYCRR § 722.2). The Order to Show Cause did not require personal service, although counsel's affidavit of service indicates such an attempt was made but refused by claimant.