New York State Court of Claims

New York State Court of Claims

MERRITT v. THE STATE OF NEW YORK, #2006-016-006, Claim No. 107910, Motion No. M-70860


Synopsis


Motion to withdraw was granted.

Case Information

UID:
2006-016-006
Claimant(s):
SHEILA MERRITT
Claimant short name:
MERRITT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107910
Motion number(s):
M-70860
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Richard K. Hershman, P.L.L.C.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralNo Appearance
Third-party defendant's attorney:

Signature date:
January 31, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of Richard K. Hershman, P.L.L.C. to withdraw as counsel for claimant. Counsel also requests a "lien on the file herein." The underlying action is for injuries allegedly sustained by claimant at the Bronx County Criminal Courthouse on February 6, 2003. There must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney-client relationship. See, e.g., J. M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929, 530 NYS2d 355 (4th Dept 1988). What constitutes good cause is not an objective determination, but rather lies within the sound discretion of the trial court. See, e.g., People v Salquerro, 107 Misc 2d 155, 433 NYS2d 711 (Sup Ct, NY County 1980).

In this case, as to cause, counsel states that following defendant's filing of a motion to dismiss (motion no. M-69871), which has been adjourned without date because of the instant motion, he has:
been attempting to obtain assistance from the claimant in preparing opposition papers to said motion. Numerous contact attempts have been made through telephone messages left for claimant on her cell phone voice mail (the only known working telephone number for her in our possession . . . ) and by letters sent through the U.S. mail and by UPS overnight, none of which have been returned as undelivered . . . That despite my attempts the claimant has failed to respond to any of my efforts thereby making it impossible for my office to prepare opposition herein. That it appears based upon my last attempts that the claimant is intentionally refusing to respond to me . . . That in such event it is clear that there has been an apparent erosion of the attorney client relationship to the extent that the best interests of the claimant would be served by permitting my office to withdraw . . .


See ¶¶5-7 of the September 21, 2005 affirmation of Richard K. Hershman.


With regard to notice, counsel has submitted an affidavit of service indicating that on October 10, 2005, this motion was served on claimant and defendant by both regular mail and by certified mail, return receipt requested.

In view of the foregoing, I find that there has been a showing of good cause and reasonable notice sufficient for counsel to be relieved. Accordingly, having reviewed the submissions[1], IT IS ORDERED that motion no. M-70860 be granted to the extent that:
  1. Permission to withdraw is hereby granted to Richard K. Hershman, P.L.L.C., only upon satisfaction of the requirements of ¶2 hereof;
  2. Within fourteen (14) days of the filing of this Decision and Order, Richard K. Hershman P.L.L.C. shall serve upon claimant Sheila Merritt a file-stamped copy of this Decision and Order, by both regular and certified mail, return receipt requested. Within fourteen (14) days of obtaining the certified mail return receipt or of being notified by the United States Postal Service that the Decision and Order was either undeliverable or unclaimed, counsel shall file an affidavit of service with the Clerk of the Court, attaching such return receipt or notification from the United States Postal Service, as applicable. Only upon the Clerk's receipt of such affidavit of service and attachment shall Richard K. Hershman, P.L.L.C. be relieved from representation of claimant;
  3. No further proceedings shall take place with respect to this claim until ninety (90) days after the filing of this Decision and Order, so as to permit claimant to retain new counsel or to notify the Court that she wishes to appear pro se. Sheila Merritt shall, within 90 days of the filing of this Decision and Order, have new counsel file a notice of appearance, or, within such 90 days, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (Gwendolyn Hatcher, Esq., AAG, New York State Department of Law, 120 Broadway, New York, NY 10271) in writing of her intention to proceed without counsel (pro se). If a notice of appearance or notification by Sheila Merritt is made in accordance with the foregoing, the Court will contact the parties to schedule a new return date for defendant's pending motion to dismiss (motion no. M-69871);
  4. If claimant fails to so appear by new counsel or to notify the Clerk of the Court within such 90-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required; and
  5. With respect to counsel's request for a lien, such is denied without prejudice to whatever rights to compensation counsel may have pursuant to §475 of the Judiciary Law or otherwise.

January 31, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The Court reviewed claimant's counsel's affirmation in support of this motion with exhibits A and B. Neither claimant nor defendant submitted any papers in response to the motion.