New York State Court of Claims

New York State Court of Claims

MORRIS/KING v. THE STATE OF NEW YORK, #2007-030-562, Claim No. 107810, Motion No. M-73185


Synopsis


Counsel for claimants’ application to be relieved as counsel denied. Has not shown that clients were served as directed in Order to Show Cause. Court will reconsider present application upon service and filing of an affidavit or affirmation by someone with knowledge as to what happened to the certified mail sent to claimants’ last known address, within thirty (30) days of the file-stamped date of this interim decision and order.

Case Information

UID:
2007-030-562
Claimant(s):
ARIYAH MORRIS an infant by her Mother and Natural Guardian RASHEENA KING and RASHEENA KING, Individually
Claimant short name:
MORRIS/KING
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107810
Motion number(s):
M-73185
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOSEPH T. MULLEN, JR. & ASSOCIATESBY: NEIL A. ZIRLIN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DANIEL CHU, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 10, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Counsel for Claimants’ application,


brought by Order to Show Cause, to be relieved as Counsel:

1,2 Order to Show Cause, Affirmation in Support of Motion to be Relieved as Attorney of Record by Neil A. Zirlin of Counsel to Joseph T. Mullen, Jr. & Associates, Attorneys for Claimant

  1. Affidavit of Service sworn to March 22, 2007
  1. Affirmation by Daniel Chu, Assistant Attorney General, Attorney for Defendant
5-9 Filed Papers: Claim; Answer; Amended Claim; Answer to Amended Claim; Morris and King v State of New York, Claim No. 107810, M-72436 (Scuccimarra, J., February 7, 2007)

This is an application by counsel for claimants to be relieved as counsel of record. In seeking such relief, there must be a showing of good cause and reasonable notice before an attorney will be permitted to terminate the attorney-client relationship. See e.g. J.M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929 (4th Dept 1988).

Counsel of record for Claimants has not entirely established that he has satisfied the requirements of the Order to Show Cause issued by this Court on March 19, 2007 as to reasonable notice. Claimants’ counsel was directed to serve Claimants by certified mail, return receipt requested on or before April 4, 2007. According to the affidavit of service submitted herein, the order to show cause was consigned to the exclusive care and custody of the U.S. Postal Service and certified mail, return receipt requested service was paid for as evidenced by the receipt for the service also attached. Unfortunately, the green card showing whether the client got the mail or whether it was refused has not been submitted, nor has any additional information been submitted by counsel to explain why the green card was not returned. In the court’s experience, if mail is refused, for example, some evidence of that refusal is furnished to the party using the certified mail service by the U.S. Postal Service.

Civil Practice Law and Rules §321(b)(2) provides that an attorney’s application to withdraw from representing the client requires a “motion on such notice to the client of the withdrawing attorney . . . as the court may direct.” See also 22 NYCRR §206.8(c).[1] The Appellate Division, Second Department has observed that “the Legislature declined to specifically delineate the manner in which service of the required notice was to be effected. Instead, the Legislature determined that the manner of service was best left to the court, whose discretion was to be exercised on a case-by-case basis.” Wong v Wong, 213 AD2d 399, 400 (2d Dept 1995).

When the Court orders service via certified mail, return receipt requested, there are two items that can establish proper service, namely the signed “green card” and a stamped “certified mail receipt”. The court appreciates that part of the apparent problem between counsel and claimants has been the lack of communication between the claimants and the attorney. While counsel need not prove that notice was actually received by the client in every case, proof of delivery - or attempted delivery - is a necessity. Wong v Wong, supra. The accompanying affidavit of service, attaching as it does the minimal evidence of a stamped certified mail receipt, and attesting to mailing to the claimants’ last known address as directed by the Court, does not quite provide sufficient assurance of reasonable notification of this application.

Accordingly, counsel is directed to provide a further Attorney’s Affirmation[2] and/or other affidavit by someone with knowledge, within thirty (30) days of the file-stamped date of this decision and order, describing in more detail exactly what happened to the mail that was sent certified mail, return receipt requested. Upon the service on the defendant and filing with the court of such affirmation and/or affidavit, the court will reconsider the present application to be relieved.

September 10, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1].The regulation provides that “[n]o motion by an attorney seeking to be relieved as counsel for a party shall be placed on the calendar unless initiated by order to show cause.”
[2].See Benefield v City of New York, 14 Misc3d 603 (Bronx Co Sup Ct 2006), for a summary of counsel’s obligations in applications to be relieved from representation.