New York State Court of Claims

New York State Court of Claims

FITZGERALD v. THE STATE OF NEW YORK, #2007-015-188, Claim No. 106992, Motion No. M-72944


Claimant's counsel's motion to be relieved as counsel was denied.

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:
The Proskin Law Firm, P.C.By: Marc D. Greenwald, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
May 15, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel moves to withdraw as counsel for the claimant pursuant to CPLR 321(b)(2) . The claim filed on November 26, 2002 sets forth causes of action for medical malpractice which allegedly occurred while the claimant was an inmate at Wallkill Correctional Facility. After a protracted delay in the prosecution of this action, the note of issue and certificate of readiness for trial were filed in July of 2006. By letter dated August 18, 2006, the Court notified the parties that this case was scheduled for trial on February 26, 2007. On February 9, 2007 movant brought on an order to show cause seeking permission to be relieved as counsel for the claimant. In support of the application, movant asserts in an attorney's affirmation that throughout its representation of the claimant they have experienced "communication problems", including difficulties in contacting the claimant. Movant also states that attorney and client have failed to reach "a mutual understanding of the matter at hand . . . [and] an understanding of a medical malpractice and lawyering strategy." The correspondence submitted by the movant in support of its motion (Exhibit D) fails to support the assertion that a lack of communication renders it unreasonably difficult for the movant to carry on its representation. By letter dated December 26, 2006 the movant provided the claimant a copy of a report by the physician who conducted an independent medical examination ("IME") of the claimant at the defendant's request. By letters dated January 19, 2007 and January 23, 2007 movant recommended that the claim be discontinued based both on the IME report and examination before trial transcripts of the defendant's doctors. Movant's most recent letter to the claimant, dated February 7, 2007, states:
I am sorry that I missed your telephone call this morning and I will try to get you later in the day.

* * *

As we discussed several times in the past, we have been unable to secure a medical expert who would be able to contradict the State's medical expert. This has been reviewed with you on several occasions and at this point in time, it is too close to trial to hire an expert because the Defendant would have a right to examine that expert . . . .

None of the letters demonstrate a failure on the part of the claimant to communicate with counsel. Rather, letters written in late 2005 and early 2006 demonstrate no more than a transient lapse in claimant's response to his attorney's requests for authorizations permitting the defendant to obtain his medical records.

In opposition to the movant's application to be relieved as counsel, the claimant stated:
I was never told that I should/could have medical expertice, [sic] in fact during that specific phone conversation [on February 8, 2007] was the only time I was advised either verbally or in letter form that it would be necessary. It went like this, 'You would need medical expertise to disbute [sic] Dr. Bentons [sic] dianoses [sic] and expertise, but it's to[o] late now, for that.' I was shocked all in one breath he said, You need medical expertice [sic] but it's to[o] late! Why is it, that it's only a one sided medical report in this medical malpractice lawsuit? [sic]

In reply, movant states that the quote set forth above was taken out of context and that, in fact, "I was trying to explain to him why a medical expert is necessary to support his claim and his choice not to retain an expert was because he could not afford an expert".

In order to terminate the attorney-client relationship "good and sufficient cause" must be found to exist (Lake v M.P.C. Trucking, 279 AD2d 813, 814 [2001]). Good and sufficient cause exists where there are " 'irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in [the] litigation' " (id. at 814, quoting Winters v Rise Steel Erection Corp., 231 AD2d 626, 626 [1996]). This is consistent with the disciplinary rule for permissive withdrawal (Code of Professional Responsibility DR 2-110[C]; [22 NYCRR 1200.15(c)(1)]), which states in pertinent part the following:
[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) The client:

(i) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.

* * *

(iv) By other conduct renders it unreasonably difficult for the lawyer to carry out employment effectively.

Movant established that it had some difficulty obtaining authorizations from the claimant in late 2005 and the early part of 2006. However, upon a review of the file in this case, it is clear that discovery proceeded uneventfully after that time, with the deposition of the claimant being completed in May, 2006 and the IME shortly thereafter. There is no basis on these papers for the Court to conclude that the claimant's conduct has made it unreasonably difficult for the movant to carry out its employment effectively (22 NYCRR 1200.15[c][1][iv]).

To the extent that it may be the movant's belief that the case lacks merit (see 22 NYCRR 1200.15[c][1][i]), it failed to substantiate this assertion with an expert's affidavit or otherwise set forth that it has consulted with an expert who opined that no medical malpractice occurred. Absent such a showing, it would be inappropriate to grant movant's application to be relieved as counsel (see LeMin v Central Suffolk Hosp., 169 AD2d 821 [1991]; Rann v Lerner, 160 AD2d 922 [1990]; Kramer v Salvati, 88 AD2d 583 [1982]; cf. Cohen v Tzimas, 135 Misc 2d 335 [1987]).

Based on the foregoing, the movant's application to be relieved as counsel is denied and the parties will be notified of the date for trial.

May 15, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated February 9, 2007;
  2. Affirmation of Marc D. Greenwald dated February 9, 2007 with exhibits;
  3. Opposition to motion for withdrawal dated March 21, 2007;
  4. Reply of Mark D. Greenwald dated March 27, 2007 with exhibits.