New York State Court of Claims

New York State Court of Claims

SCIASCIA v. THE STATE OF NEW YORK, #2006-028-574, Claim No. 109588, Motion No. M-71659


Synopsis



Case Information

UID:
2006-028-574
Claimant(s):
SAMUEL SCIASCIA
Claimant short name:
SCIASCIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109588
Motion number(s):
M-71659
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
NIRA T. KERMISCH, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's motion for substitution of attorney pursuant to CPLR § 321 (b):

(1) Notice of Motion filed May 1, 2006 and Affirmation in Support of Nira T. Kermisch, Esq. (Kermisch Affirmation) and Affidavit of Samuel Sciascia (Sciascia Affidavit) with annexed Exhibits A& B;

(2) Affirmation in Opposition of Joseph F. Romani, AAG filed May 4, 2006.

Filed Papers: Claim filed July 8, 2004; Verified Answer filed August 2, 2004.


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, 2004.[1] 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 attorney can 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][1]). 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 counsel.[2] It is well-settled that a client may discharge his/her attorney with or without cause (Robinson v Rogers, 237 NY 467 [1924]). 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) 232-7280.

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.


July 27, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1].A motion for permission to late file was filed but later withdrawn as unnecessary by Robert Louis Riley, Esq. on behalf of Claimant.
[2].Generally, the motion must be made upon such notice as the Court may direct, i.e., by Order to Show Cause (CPLR § 321 [b][2]). Here, Claimant made this motion by Notice of Motion and submitted an affidavit of service establishing service of these motion papers by mail on Mr. Riley at 11 Court Street, Auburn, New York. The Court will accept the attempted service of these motion papers on Mr. Riley at said address as adequate given the demonstrated inability of both Ms. Kermisch and Claimant to locate Mr. Riley or obtain any current address for him. Stated another way, requiring Claimant to prepare an Order to Show Cause in which the Court would just direct service by ordinary mail at this same address would be a waste of judicial resources as well as counsel's time. Additionally, the Court notes that as of June 8, 2006, the on-line New York State Attorney Directory listed the address for Mr. Riley as 11 Court Street in Auburn with his registration status as "delinquent" <http://portal.courts.state.ny.us/pls/portal30/internetdb_dev.menu_internetdb.show>