New York State Court of Claims

New York State Court of Claims

MORRIS/KING v. THE STATE OF NEW YORK, #2007-030-580, Claim No. 107810, Motion No. M-73185


Attempted service by certified mail of application by counsel for claimants for permission to withdraw as counsel to clients’ last known address adequate under circumstances, and motion granted, provided counsel serves copy of order on claimants by regular and certified mail and files proof of service with Clerk’s Office. Failure by claimants to notify Clerk of intent to proceed pro se, or appear by new counsel, within 90 days of filing, will result in dismissal of the claim

Case Information

ARIYAH MORRIS, an infant by her Mother and Natural Guardian, RASHEENA KING and RASHEENA KING, Individually
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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
November 20, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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, dated March 12, 2007

  1. Affidavit of Service sworn to March 22, 2007
  1. Affirmation by Daniel Chu, Assistant Attorney General, Attorneys for Defendant
  1. Affirmation by Neil A. Zirlin, Attorney for Claimant dated November 2, 2007 and attachment
6-11 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); Morris and King v State of New York, Claim No. 107810, M-73185, Interim Decision and Order (Scuccimarra, J,. October 9, 2007)

This is a continued application by counsel for claimants to be relieved as counsel of record. In the Court’s Interim Decision and Order filed October 9, 2007, incorporated herein by reference,[1] the court directed the attorneys to provide a further affirmation or affidavit describing in more detail the path taken by the mail sent by certified mail, return receipt requested to their client, and noting that the court would reconsider the application to be relieved upon service and receipt of such affirmation.

Civil Practice Law and Rules §321(b)(2) provides that an attorney’s application to withdraw from representing a 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).[2] Counsel has submitted an additional affirmation as suggested, and has attached the original envelope in which the original mailing of the Show Cause Order and supporting papers was made to claimants, that still contains the green return receipt postcard, and is stamped on the front as “unclaimed” by the United States Post Office at Charleston, South Carolina. This envelope, clearly marked as coming from the law firm, was returned to their offices unopened. [Affirmation by Neil A. Zirlin dated November 2, 2007, ¶ 3].

At this point, and as suggested in the Interim Decision and Order, the court is satisfied that there has at least been an attempted delivery. This effort satisfies the notice aspect of an application to be relieved under the terms of the show cause order’s service requirements, and pursuant to the suggestions made in Wong v Wong, 213 AD2d 399, 400 (2d Dept 1995).

With respect to the merits of the application to be relieved, counsel must show good cause to terminate the attorney-client relationship. See e.g. J.M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929 (4th Dept 1988); Code of Professional Responsibility DR 2-110 [22 NYCRR § 1200.15]. What constitutes good cause is not an objective determination, but rather lies within the sound discretion of the trial court. By way of example, it may include irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation, a failure to cooperate and a “. . . failure to remain in contact with the . . . law firm or to respond to any of its correspondence . . . (citations omitted).” Tartaglione v Tiffany, 280 AD2d 543 (2d Dept 2001); see also Walker v Mount Vernon Hospital, 5 AD3d 590 (2d Dept 2004); Winters v Rise Steel Erection Corp, 231 AD2d 626 (2d Dept 1996). Counsel should “[demonstrate] that ‘the relationship between . . . [the clients] and [their] attorney ha[s] deteriorated to the point where further representation [is] inappropriate’. . . (citations omitted).” Lake v M.P.C. Trucking Inc., 279 AD2d 813, 814 (3d Dept 2001).

Counsel indicated in the original affirmation submitted in support of the order to show cause to be relieved that the claimants have failed to communicate with the attorneys’ office or respond to phone messages, or letters, making it impossible to comply with discovery demands made by defendants and to ascertain what if any residual injury the infant or her mother may have suffered since the happening of the alleged malpractice on June 3, 2001. [Affirmation by Neil A. Zirlin dated March 12, 2007, ¶ 4]. This lack of communication and cooperation is additionally evidenced by the failure to accept the certified mail sent to the clients’ last known address in an envelope clearly containing the law firm name and address or, if the clients moved, failing to provide a change of address to their own attorneys.

Counsel for claimants also seeks “recognition” that Joseph T. Mullen, Jr. & Associates have a right to attorneys fees and reimbursement of disbursements spent litigating the claim, based upon the “substantial legal services” performed. [Affirmation by Neil A. Zirlin dated March 12, 2007, ¶7]. This would appear to be a matter of law in any event, and without any submission of disbursement records or further description of services rendered, other than noting the likelihood of entitlement to attorneys fees, no particular lien could be fixed at this juncture. See Judiciary Law §475. As noted in Kalodimos v State of New York, UID #2003-028-534, Claim No. 92102, Motion No. M-66155, unreported decision (Sise, J., May 12, 2003):
“In New York, an attorney's charging lien is governed by statute (see Judiciary Law § 475; see also Banque Indosuez v Sopwith Holdings Corp., 98 NY2d 34) and it may be determined and enforced upon an application by either ‘the client or attorney’ (Judiciary Law § 475). The lien comes into existence, without notice or filing, upon commencement of the action or proceeding (LMWT Realty Corp. v Davis Agency, 85 NY2d 462, 467). The charging lien does not merely give an attorney an enforceable right against the property of another, it gives the attorney an equitable ownership interest in the client's cause of action (id.) . . . The Court of Claims has jurisdiction under section 475 of the Judiciary Law to fix the fees and enforce the lien of an attorney (see Estate of Dresner v State of New York, 242 AD2d 627, 628; Butler v State of New York, 180 Misc 127).”

In view of the foregoing, the Court finds that there has been a showing of good cause to be relieved.

Accordingly, it is ORDERED, that motion no. M-73185 is granted to the extent that:
1. Permission to withdraw is hereby granted to Joseph T. Mullen, Jr. & Associates, Attorneys for Claimant upon satisfaction of the requirements of ¶2 hereof.
2. Within fourteen (14) days of the filing of this Decision and Order, Joseph T. Mullen, Jr. & Associates shall serve upon Rasheena King, the mother and natural guardian of Ariyah Morris, a file-stamped copy of this Decision and Order by both certified mail, return receipt requested and also by regular mail. Counsel shall thereafter promptly file an affidavit of such service, with the return receipt attached or refusal if any, with the Clerk of the Court. Only upon the Clerk’s receipt of such affidavit with return receipt, or refused, shall Joseph T. Mullen, Jr. & Associates, be relieved from representation of claimants; and
3. No further proceedings shall take place with respect to this claim until ninety (90) days after the filing of this Decision and Order, so as to permit claimants to retain new counsel if desired. Rasheena King both individually and on behalf of Ariyah Morris as the mother and natural guardian of Ariyah Morris, an infant, shall, within ninety (90) days after the filing of this Decision and Order, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (Daniel Chu, AAG, New York State Department of Law, 120 Broadway, New York, New York 10601) in writing of her intention to proceed without counsel (pro se), or file a notice of appearance by a new attorney.
4. If Rasheena King fails to so notify the Clerk of the Court and the Attorney General’s Office or appear by new counsel within such 90-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.
5. No funds shall be paid on the claim, by judgment or settlement, prior to the determination of the amount of any attorneys’ lien possessed by Joseph T. Mullen, Jr. & Associates at the conclusion of the litigation. Judiciary Law §475.

November 20, 2007
White Plains, New York

Judge of the Court of Claims

[1].In that Interim Decision and Order the court said: “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’. . . 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.”
[2].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.”