New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2007-028-551, Claim No. 112143, Motion No. M-73140


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:
COUGHLIN & GERHART, LLPBY: Peter H. Bouman, Esq.
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the motion of Claimant’s counsel for permission to withdraw as his representative:

1. Order to Show Cause and Supporting Affidavit of Peter H. Bouman, Esq.

2. Affidavit in Opposition (none received)

Filed papers: Claim; Answer

By an Order to Show Cause, Peter H. Bouman, Esq., (hereinafter “Movant”) seeks permission pursuant to CPLR 321(b)(2) for his law firm to be relieved as representative of Claimant Eric Scott in the instant action. The Claim is based on allegations that on February 29, 2004 Claimant was injured while operating a snowmobile on property owned by the State of New York, when he encountered a sharp bend that he was unable to negotiate.

A client may discharge an attorney at any time and for any reason, but once an attorney has appeared as a litigant's representative, his or her right to withdraw from that position is restricted. Disciplinary Rules DR 2-110(c)(i) of the Code of Professional Responsibility (22 NYCRR § 1200.15[c][1]) provides that a lawyer may withdraw in certain circumstances, including situations that are based on the client's conduct or the interaction between the client and attorney. These include situations in which the client insists on presenting a claim or defense that cannot be supported by good faith argument (subd [i]) or by other conduct that "renders it unreasonably difficult for the lawyer to carry out employment effectively" (subd [iv]).

To succeed in obtaining permission to withdraw, the attorney must demonstrate that reasonable notice of the motion was given to the client and that there exists good and sufficient cause for the withdrawal (Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988]; Johns-Manville Sales Corp. v State Univ. Constr. Fund, 79 AD2d 782 [3d Dept 1980]). The determination of whether good cause exists lies within the discretion of the Court (Matter of Lambrou v Lambrou, 252 AD2d 797 [3d Dept 1998]), and factors to be considered include the merit of the underlying action and, most frequently, whether there has been an irretrievable breakdown in the attorney/client relationship (Valente v Seiden, 244 AD2d 799, 800 [3d Dept 1997]; Ashker v International Bus. Machs. Corp., 201 AD2d 765 [3d Dept 1994]). Irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation, an established breakdown in communications between attorney and client, or a client's complete failure to cooperate with counsel are viewed as strong grounds for allowing withdrawal (Zelkha v Ezati, 140 AD2d 338; Winters v Rise Steel Erection Corp., 231 AD2d 626; Mullins v Saul, 130 AD2d 634; Waid v State of New York, UID #2002-013-025, Claim No.104912, Motion No. M-65176 [Ct Cl 2002] Patti, J.)

In the instant case, Movant states that his firm was retained by Claimant’s parents more than 90 days after the incident and that, consequently, in order to preserve his client’s rights, he initiated a successful motion for permission to late file immediately, before he had the opportunity to conduct an extensive investigation. After the motion was granted and the Claim filed and served, further investigation was conducted and facts were discovered that were other than Claimant recalled or his parents understood. On August 3, 2006, counsel wrote to Claimant explaining the situation and recommending that he seek another attorney. Thereafter, Claimant informed him that he had located another attorney, John M. Zarcone, Jr., Esq. and asked that the case file be forwarded to him for review. Approximately one month later, Attorney Zarcone informed counsel that he would not agree to the execution of a substitution of counsel naming him as Claimant’s new representative but nevertheless insisting that Mr. Bouman direct any further communications to Claimant through his office. Apparently, there has been no further communication between Claimant and Movant’s firm to clarify this situation.

With respect to the question of prejudice, Movant states that his firm’s efforts secured Claimant’s right to proceed with his action, that responses have been made to Defendant’s discovery demands, and that discovery demands have been served on Defendant, to which there have been no responses. Furthermore, Movant states that no demand for payment for services or actual disbursements is being made and no lien asserted.

In accordance with the Court’s direction, copies of the Order to Show Cause and supporting affidavit were served, by overnight mail, on Claimant, Claimant’s parents, Attorney Zarcone, and defense counsel. None of these individuals has made a submission in response to the motion, and from this the Court concludes that there is no opposition to the requested relief.

This motion is GRANTED, and the Clerk is directed to amend the Court's records to reflect that Claimant Eric Scott, 286 Cameo Court, East Meadow, New York 11554, is now representing himself. All action in Claim No. 112143 is stayed for thirty days, so that Claimant may have an opportunity to retain new counsel (CPLR 321[c]). At the expiration of that time, whether Claimant continues to represent himself or another attorney has entered an appearance, the Court will expect the Claimant to proceed toward prosecution of his claim in an efficient manner.

June 23, 2007
Albany, New York

Judge of the Court of Claims