New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2006-015-121, Claim No. 111142, Motion No. M-72050


Motion to be relieved a counsel for the claimant was granted.

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:
Bonina & Bonina, P.C.Tyrone F. Sergio, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. Wagner, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 6, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


By order to show cause signed by this court on July 7, 2006 Bonina & Bonina, P.C., seek to be relieved as claimant's attorneys of record in this matter pursuant to CPLR 321 (b). Neither claimant nor the defendant opposed the motion which is granted as provided below. 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 that claimant received reasonable notification of counsel's application to withdraw.

The affirmation of Tyrone F. Sergio 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 personally serve a copy of the instant decision and order with notice of entry upon Elvin Rodriguez on or before September 22, 2006 and file proof of such service with the Clerk of the Court. Elvin Rodriguez shall have 45 days following service of the decision and order upon him to inform the Court, in writing, of the name and address of a new attorney retained to represent him on this claim or that he intends to proceed on a pro se basis. Claimant's time to complete discovery and to file his note of issue currently set to expire on September 27, 2006 is hereby extended to January 26, 2007.

September 6, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated July 7, 2006;
  2. Affirmation of Tyrone F. Sergio dated June 29, 2006;
  3. Proof of service dated July 13, 2006;
  4. Affirmation of Belinda A. Wagner dated July 17, 2006.