New York State Court of Claims

New York State Court of Claims

SHIPMAN v. THE STATE OF NEW YORK, #2007-016-020, Claim No. 109559, Motion No. M-72960


Synopsis



Case Information

UID:
2007-016-020
Claimant(s):
DENNIS SHIPMAN
1 1.The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
SHIPMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109559
Motion number(s):
M-72960
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Gary S. Fish, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney General
By: Lea LaFerlita, Esq., AAGNo Appearance
Third-party defendant’s attorney:

Signature date:
June 5, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause, Gary S. Fish, Esq., moves for permission to be relieved as counsel to claimant Dennis Shipman. In his claim, Mr. Shipman alleges that he was wrongfully terminated from his position as a social worker at the Brooklyn Developmental Center. Pursuant to CPLR §321(b)(2), approval of the court is required in order for an attorney to withdraw as counsel for a litigant. To succeed on such a motion, the attorney must show reasonable notice to the client and good and sufficient cause for the withdrawal. 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 discretion of the court.

Here, with regard to notice, claimant was served with the Order to Show Cause and in fact, submitted opposition papers. As to cause, “[i]rreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation . . . [and] an established breakdown in communications between attorney and client . . . are viewed as strong grounds for allowing withdrawal . . .” Waid v State of New York, Ct Cl, June 12, 2002 (unreported, Claim No. 104912, Motion No. M-65176, UID #2002-013-025[2], Patti, J.).

Messrs. Shipman and Fish have different views as to how the case should be handled. In addition, the tenor of the correspondence between them establishes that there has been a breakdown of a meaningful attorney/client relationship. In sum, I find that the granting of this motion is justified.

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-72960 be granted to the extent that:
1. Gary S. Fish is permitted to withdraw as attorney of record for claimant. Within thirty (30) days of the date of filing of this Decision and Order, Gary S. Fish shall serve a file-stamped copy of the Decision and Order on claimant by certified mail, return receipt requested and by regular mail, and on defendant by regular mail;
2. Gary S. Fish shall file proof of service on claimant and defendant with the Clerk of the Court. Upon the Clerk’s receipt of said proofs of service, counsel shall be relieved from representation of claimant;
3. Claimant shall, within ninety (90) days of service upon him of a file-stamped copy of this Decision & Order, notify the Clerk of the Court and the State of New York in writing of his intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney; and
4. In the event claimant fails to appear pro se or by new counsel within the said ninety (90) day period, the claim herein will be deemed dismissed pursuant to 22 NYCRR 206.15 and no further order of this Court will be required.


June 5, 2007
New York, New York

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




  1. [2]This and other decisions of the Court of Claims may be found on the court’s website: www.nyscourtofclaims.state.ny.us.
  2. [3]The Court reviewed claimant’s counsel’s affirmation in support of this motion with annexed undesignated exhibits; claimant’s Opposition to Order to Show Cause dated January 31, 2007; the Reply Affirmation of Gary S. Fish dated March 9, 2007 with undesignated attachment; and claimant’s Answer to Reply Affirmation dated March 10, 2007.