New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2006-016-046, Claim No. 108663, Motion No. M-71944


Synopsis


Motion to withdraw was granted.

Case Information

UID:
2006-016-046
Claimant(s):
DENISE DAVIS, Individually and as Administratrix of the Estate of GENEVA CLARK, Deceased
Claimant short name:
DAVIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108663
Motion number(s):
M-71944
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
The Jacob D. Fuchsberg Law Firm, LLPBy: Alan L. Fuchsberg, Esq. and Donna R. Silverglad, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney GeneralBy: Albert E. Masry, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 7, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is the motion of the Jacob D. Fuchsberg Law Firm, LLP to withdraw as counsel for claimant Denise Davis. In the underlying claim, it is alleged that from May 17 through May 23, 2002, at certain State facilities including the Brooklyn Developmental Disabilities Service Office, Geneva Clark was provided with improper medical treatment, which resulted in her death. Ms. Davis has informed the Court that she opposes the motion. Defendant submitted papers stating that it takes no position. 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 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).
* * *
Here, claimant appeared before the court on July 7, 2006, to oppose this motion. Claimant’s attorney indicated that prior to such date, claimant had been served with a copy of the firm’s order to show cause. It was unclear whether Ms. Davis had in fact received the motion papers prior to July 7, 2006, but in any event, a copy was provided to her on that date, and, in addition, counsel explained to the court in her presence the reasons for this motion. Such reasons were reiterated in counsel’s subsequent written submission, which stated that two experts were consulted. See the July 21, 2006 letter of Alan L. Fuchsberg along with the court’s letter to counsel of the same date.

Having reviewed the submissions[1], I find that there has been a showing of good cause and reasonable notice sufficient for counsel to be relieved. See, e.g., Cohen v Tzimas, 135 Misc 2d 335, 515 NYS2d 173 (Sup Ct, NY County 1987). Accordingly, IT IS ORDERED that motion no. M-71944 be granted to the extent that:
  1. Permission to withdraw is hereby granted to the Jacob D. Fuchsberg Law Firm, LLP, only upon satisfaction of the requirements of ¶2 hereof;
  2. Within ten days of the filing of this Decision and Order, the Jacob D. Fuchsberg Law Firm shall serve upon claimant Denise Davis a file-stamped copy of this Decision and Order, by both regular and certified mail, return receipt requested. Within ten 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 stating that Ms. Davis was served as set forth above, and attaching the applicable return receipt or notification from the United States Postal Service. Only upon the Clerk's receipt of such affidavit of service and attachment shall the Jacob D. Fuchsberg Law Firm, LLP be relieved from representation of claimant;
  3. The trial scheduled to commence on September 8, 2006 shall be adjourned without date. In addition, no further proceedings shall take place with respect to this claim until December 15, 2006, so as to permit claimant to retain new counsel or to notify the Court that she wishes to appear pro se. Denise Davis shall, by December 15, 2006, have new counsel file a notice of appearance, or, by such date, 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 (Albert E. Masry, 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); and
  4. If claimant fails to so appear by new counsel or to notify the Clerk of the Court by December 15, 2006, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.

August 7, 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 through C; claimant’s counsel’s July 21, 2006 letter; and defendant’s “Affirmation in Reply.”