5) Affirmation in Opposition of Assistant Attorney General, Joel L.
Marmelstein, Esq. (Marmelstein Affirmation), filed October 26,
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
It is well established that an attorney may not unilaterally withdraw from
representation upon request but must obtain court approval (CPLR 321 [b];
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]). 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
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,
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.