New York State Court of Claims

New York State Court of Claims

DROZ v. THE STATE OF NEW YORK , #2005-028-567, Claim No. 108142, Motion No. M-69995


Attorneys' motion to withdraw (CPLR 321[2]) is granted where there is no longer a meaningful or workable attorney/client relationship.

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

Signature date:
October 5, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the motion of Claimant's counsel for permission to withdraw:

1. Order to Show Cause and Supporting Affidavit of Kenneth P. Ray, Esq, with annexed Exhibits.

2. Affidavit in Opposition of Martin Droz., with annexed Exhibits.

3. Affirmation and Supplemental Affirmation in Support of Elmer Robert Keach, III, Esq.

Filed papers: Claim; Answer

By an Order to Show Cause, Kenneth P. Ray, Esq., and Elmer Robert Keach, III, Esq., seek permission pursuant to CPLR 321(b)(2) for their law firm to be relieved as representative of Claimant Martin Droz in the instant action. The Claim is based on allegations of false arrest, malicious prosecution, and violation of Claimant's civil and constitutional rights, arising from an incident that occurred on August 13, 2002 at the Town of Vienna Town Hall.

A client may discharge an attorney at any time and for any reason, but once an attorney has appeared as a litigant's representative, his or her right to withdraw from that position is restricted. Disciplinary Rules DR 2-110(c)(1) of the Code of Professional Responsibility (22 NYCRR § 1200.15[c][1]) provides that a lawyer may withdraw in certain circumstances, including situations that are based on the client's conduct or the interaction between the client and attorney. These include situations in which the client insists on presenting a claim or defense that cannot be supported by good faith argument (subd [I]) or by other conduct that "renders it unreasonably difficult for the lawyer to carry out employment effectively" (subd [iv]).
To succeed in obtaining permission to withdraw, the attorney must demonstrate that reasonable notice of the motion was given to the client and that there exists good and sufficient cause for the withdrawal (Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988] ; Johns-Manville Sales Corp. v State Univ. Constr. Fund, 79 AD2d 782 [3d Dept 1980]). The determination of whether good cause exists lies within the discretion of the Court (Lambrou v Lambrou, 252 AD2d 797 [3d Dept 1998]), and factors to be considered include the merit of the underlying action and, most frequently, whether there has been an irretrievable breakdown in the attorney/client relationship (Valente v Seiden, 244 AD2d 799, 800 [3d Dept 1997]; Ashker v International Bus. Machs. Corp., 201 AD2d 765 [3d Dept 1994]).
Irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation, an established breakdown in communications between attorney and client, or a client's complete failure to cooperate with counsel are viewed as strong grounds for allowing withdrawal (Zelkha v Ezati, 140 AD2d 338; Winters v Rise Steel Erection Corp., 231 AD2d 626; Mullins v Saul, 130 AD2d 634)

(Waid v State of New York, #2002-013-025, Claim No.104912, Motion No. M-65176 [Ct Cl 2002] Patti, J.)

In the instant case, there are stark differences between Claimant's view of the course that should be pursued in this litigation and the view taken by his attorneys. They also disagree as to the potential merit of the underlying claim. In addition, the tone of the correspondence between Claimant and his attorneys, as well as the tone of Claimant's submission in opposition to the motion, establishes to the Court's satisfaction that there has been a thorough breakdown of any meaningful attorney/client relationship. These irreconcilable differences justify granting the requested relief.

Counsels' motion is granted and the Clerk is directed to amend the Court's records to reflect that Claimant Martin Droz, P.O. Box 87, North Bay, New York 13123, is now representing himself. Counsel shall make and provide to Claimant a copy of his file, at the address set forth above, by certified mail, return receipt requested, within fourteen days of the date this decision and order is filed stamped and Counsel shall submit to the Clerk of the Court an affidavit of compliance. All action in Claim No. 108142 is stayed for thirty days, so that Claimant may have an opportunity to retain new counsel (CPLR 321[c]). At the expiration of that time, whether Claimant continues to represent himself or another attorney has entered an appearance, the Court will expect the Claim to proceed toward trial in an efficient manner or to be discontinued.

Counsels' motion is granted.

October 5, 2005
Albany, New York

Judge of the Court of Claims