Filed Papers: Claim filed July 8, 2004; Verified Answer filed August 2,
The underlying Claim alleges that correction officers used excessive force
against Claimant, an inmate, at the Southport Correctional Facility on July 9,
2003. A Notice of Intention was served upon the Office of the Attorney General
on October 9, 2003. Thereafter, a Claim was filed on July 8,
The Notice of Intention and Claim were
both prepared by Claimant's attorney of record, Robert Louis Riley, Esq. located
at 11 Court Street, Auburn, New York.
Now, by way of this motion, Claimant moves to have Nira T. Kermisch, Esq.
substituted as his attorney of record in place of Robert Louis Riley, Esq. due
to his inability to locate and/or contact Mr. Riley. Ms. Kermisch advises that
she has attempted to reach Mr. Riley through various telephone numbers and
addresses, as well as through the Albany VA Hospital, without success
(Kermisch Affirmation, ¶ ¶ 11-16). Ms. Kermisch also indicates
that she contacted the Appellate Division, Fourth Department and was advised
that Mr. Riley is no longer an attorney in good standing (Kermisch
Affirmation, ¶ 14). Claimant recites similar attempts to contact Mr.
Riley without success (Claimant's Affidavit).
For its own part, the Court too has had difficulties in communicating with Mr.
Riley since the filing of this claim. For instance, the Court's assignment
letter sent to Mr. Riley at his 11 Court Street address in Auburn was returned
as "moved left no address." On February 18, 2005, Mr. Riley telephoned chambers
advising that he had not yet decided whether or not he was going to keep this
case due to personal health problem, but that he would file a consent to change
attorney form if and when the need arose. The last communication from Mr. Riley
with chambers was on August 5, 2005, when Mr. Riley telephoned chambers advising
that he had been admitted to the VA Hospital in Syracuse and may be transferred
to the VA Hospital in Albany.
For a change of attorney to take effect during an action, the parties must
comply with the statutorily approved methods of discharge (CPLR § 321 [b]).
The first method outlined by CPLR § 321(b) is when the change of attorney
can be effected by agreement, the party and the outgoing
simply file a consent to change attorney form with the Clerk of the Court and
serve notice of the change of attorney on the other parties (CPLR § 321
[b]). Obviously, the inability to locate and/or contact Mr. Riley makes
obtaining his signature on a consent to change attorney form impossible. The
second method applies in situations such as here when consent is lacking,
thereby requiring judicial intervention for substitution of
It is well-settled that a client may
discharge his/her attorney with or without cause (Robinson v Rogers
NY 467 ). Claimant's statements in his affidavit can easily be read as a
statement that he has terminated the employment of Mr. Riley. In view of all
the facts and circumstances noted hereinabove, Claimant's motion for
substitution of attorney Nira T. Kermisch, Esq. as his attorney of record in
place of Robert Louis Riley, Esq. will be granted. The Clerk of the Court is
directed to change Claimant's attorney of record to reflect: Nira T. Kermisch,
Esq., 36 West Main Street, Suite 405, Rochester, New York 14614, Telephone (585)
Finally, the Court will vacate the Preliminary Conference Stipulation and Order
dated October 13, 2004 since the discovery deadlines contained therein have
expired. Counsel are directed to attempt to agree upon a revised disclosure
schedule, to be so ordered by the Court (22 NYCRR § 206.10 [d]).
In view of the foregoing, Claimant's motion for substitution of attorney
pursuant to CPLR § 321 (b), Motion No. M-71659, is GRANTED. The Clerk of
the Court is directed to serve a copy of this Decision and Order on Robert Louis
Riley, Esq., by regular mail, at his address on file with the Court, namely 11
Court Street, Auburn, New York.