New York State Court of Claims

New York State Court of Claims

CASANOVA v. THE STATE OF NEW YORK, #2005-028-519, Claim No. 107081, Motion Nos. M-69196, M-69261


Claimant's counsel's motion (M - 69196) to withdraw as attorney of record is granted and Claimant's motion (M - 69261) for poor person status and the assignment of counsel is denied.

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):
M-69196, M-69261
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 28, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the motion by claimant's counsel (M-69196) for an order permitting him to be relieved as counsel and Claimant's motion (M-69261) for poor person status and the assignment of counsel:


1) Order to Show Cause and Supporting Affirmation of David H. Swyer, Esq. (Swyer Affirmation), filed September 27, 2004.

2) Affidavit of Benjamin Casanova (Casanova Affidavit), filed October 6, 2004

3) Opposition papers for Order to Show Cause: None


4) Notice of Motion, Supporting Affidavit of Benjamin Casanova (Casanova II) and "Sworn Affidavit" of Benjamin Casanova (Casanova III) with annexed Exhibits, filed October 18, 2004.

5) Affirmation in Opposition of Assistant Attorney General, Joel L. Marmelstein, Esq. (Marmelstein Affirmation), filed October 26, 2004.

By Order to Show Cause filed on September 27, 2004 and made returnable on November 3, 2004, Claimant's attorney moved for an order granting leave to withdraw as counsel and granting such other relief as the court deems proper. Claimant has responded to the motion and consents to the discharge of counsel. Defendant takes no position on the application for permission to withdraw.

Claimant subsequently filed a motion pursuant to CPLR 1101 and CPLR 1102 for poor person status and the assignment of counsel. Defendant opposes this motion arguing that Claimant is not entitled to the appointment of counsel at public expense for a tort action seeking compensatory damages against the State. Defendant also argues that Claimant did not properly serve the County Attorney of the county in which the action is triable as required by CPLR

1101 (c).

It is well established that an attorney may not unilaterally withdraw from representation upon request but must obtain court approval (CPLR 321 [b][2]; Matter of Jamieko A., 193 AD2d 409, 410) upon a showing of good and sufficient cause (see Matter of Dunn, 205 NY 398, 403; Lake v M.P.C. Trucking, 279 AD2d 813) and upon reasonable notice to the client (CPLR 321 [b][2]). The element of good and sufficient cause exists when the relationship between the attorney and client has deteriorated to the point where further representation is inappropriate (Ashker v International Bus. Machs. Corp., 201 AD2d 765, see Valente v Seiden, 244 AD2d 799). Claimant's attorney alleges in his affirmation in support that the extensive pretrial discovery does not support the merits of Claimant's claim thus causing a disagreement between Claimant and counsel with respect to prosecuting the instant Claim (Swyer Affirmation). Claimant's counsel also alleges that the attorney-client relationship has further deteriorated because of Claimant's fictitious allegations that counsel is responsible for Claimant's incarceration (Swyer Affirmation). Claimant alleges that he engaged in the sale of controlled substances after being released on parole because of counsel's request for the reimbursement of counsel's expenses relating to the commencement of the instant Claim (Casanova II). Here, it is abundantly evident that the attorney-client relationship has become so strained that counsel will be prevented from zealously representing claimant. Thus, counsel has made the requisite showing and the motion is granted.

The Court must now address Claimant's subsequent motion for poor person status and the assignment of counsel.

CPLR 1101 (c) requires that
[i]f an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the county attorney in the county in which the action is triable...
This requirement is significant because the payment of the witness fees, and the other privileges of a poor person (see CPLR 1102), may be a county charge. The failure to comply with this section renders an application defective (Sebastiano v State of New York, 92 AD2d 966; Harris v State of New York, 100 Misc 2d 1015, 1016). Here, Claimant has filed an affidavit of service with the instant application showing proof of service on the Attorney General and the Court. There is no proof whatsoever that the appropriate County Attorney's office has been served with the moving papers or that the Claimant has made any attempt to comply with the service requirements of CPLR 1101 (c). The Court therefore denies the instant application.

Even if the Court were to countenance the failure to serve the county attorney, the application would nevertheless be denied. The assignment of counsel in civil matters is discretionary and is generally denied except in cases involving grievous forfeiture or loss of a fundamental right (see Matter of Smiley, 36 NY2d 433; Wills v City of Troy, 258 AD2d 849, lv
to app dismissed 93 NY2d 1000). A review of the pleadings reveals this case to be a typical tort action for a slip and fall in which Claimant is seeking compensatory damages against the State and, as such, fails to rise to the level warranting assignment of counsel. Similarly without merit is Claimant's request for poor person status. Inasmuch as the filing fee has already been paid, the prosecution of this matter in this court does not require the Claimant to pay any costs or fees. To the extent Claimant must mail pleadings to the Clerk of the Court and the Defendant, the Defendant provides limited free postage on a weekly basis and permits advances for legal mail postage, if the inmate has insufficient funds (see Robbins v State of New York, Claim No. 102325, Motion No. M-62803, UID#2000-006-962, NeMoyer, J., January 9, 2001).

Based upon the foregoing, Claimant's motion for an order granting him poor person status and for the assignment of counsel must be denied.

Accordingly, Claimant's counsel's motion (M-69196) to withdraw as attorney of record is granted and Claimant's motion (M-69261) is denied.

It is ORDERED, that David H. Swyer, Esq. is authorized to withdraw as counsel of record in this matter; and it is further

ORDERED, that within 30 days of the filing date of this Decision and Order, the attorney is directed to file an affidavit with the Chief Clerk's office indicating that service of a copy of this Decision and Order was made upon Claimant by certified mail, return receipt requested and by ordinary mail to Claimant's last known address and that the attorney had turned over the complete file to Claimant; and it is further

ORDERED, that all proceedings are stayed for sixty (60) days in which time Claimant shall secure a new representative, who shall file a Notice of Appearance, or advise the court that he will proceed Pro Se.

February 28, 2005
Albany, New York

Judge of the Court of Claims