New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2006-015-068, Claim No. 106352, Motion No. M-71019


Synopsis


Court granted attorney's motion to be relieved of duty of representing inmate.

Case Information

UID:
2006-015-068
Claimant(s):
ERIC MARTINEZ a/k/a EMILIO ROSAS
Claimant short name:
MARTINEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106352
Motion number(s):
M-71019
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Codelia, Aguirre & Socorro, P.C.By: Ricardo A. Aguirre, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 10, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause signed by this Court on November 29, 2005 Ricardo A. Aguirre seeks to be relieved as claimant's attorney of record in the instant matter pursuant to CPLR 321 (b). The defendant did not oppose the motion and claimant by letter dated December 27, 2005 merely asked that he be afforded time to retain a new attorney. The motion is granted. 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 and from claimant's aforementioned letter that claimant received reasonable notification of counsel's application to withdraw.

The "affidavit" of Ricardo A. Aguirre in support of the motion sets forth factual allegations tending to prove that good cause exists to permit the law firm's withdrawal. While the determination of good cause 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/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)]). The movant has met its burden and, accordingly, the motion to be relieved is granted.

IT IS ORDERED that the withdrawing attorney shall personally serve a copy of this decision and order upon Eric Martinez, a/k/a Emilio Rosas on or before March 1, 2006 and file proof of such service with the Clerk of the Court. Eric Martinez, a/k/a Emilio Rosas, shall have 45 days following service of the decision and order upon him to inform the Court of the name and address of an attorney retained to represent him on this claim or that he intends to proceed on a pro se basis.



February 10, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order to Show Cause filed December 6, 2005;
  2. Affidavit of Ricardo A. Aguirre dated November 28, 2005 with exhibits;
  3. Affidavit of Belinda A. Wagner dated December 13, 2005;
  4. Letter dated December 27, 2005 from Emilio Rosas/Eric Martinez.