New York State Court of Claims

New York State Court of Claims

WILE v. STATE OF NEW YORK, #2007-037-029, Claim No. 113351, Motion No. M-73483


Synopsis


Motion to withdraw as counsel granted. Request for judgment against Claimant for disbursements and for a charging lien are denied, without prejudice.

Case Information

UID:
2007-037-029
Claimant(s):
AMY WILE
1 1.The caption has been amended sua sponte to reflect that the only proper Defendant is the State of New York.
Claimant short name:
WILE
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
113351
Motion number(s):
M-73483
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Siegel, Kelleher & KahnBy: Timothy G. O’Connell, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: William D. LonerganAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2007
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to the Motion to Withdraw as Counsel:

1. Order to Show Cause dated May 16, 2007 and affidavit of Timothy G. O’Connell,

Esq., sworn to April 18, 2007, with annexed Exhibits A-D;

2. Affidavit of Assistant Attorney General William D. Lonergan, sworn to May 31,

2007 regarding outstanding discovery.


Filed papers: Claim filed February 21, 2007;[2] Answer filed April 3, 2007.

By its present motion, the law firm of Siegel, Kelleher & Kahn seeks to withdraw as counsel for Amy Wile with respect to claim no. 113351 which arises out of a motor vehicle accident which occurred on February 26, 2005 at the intersection of East Tupper and Elm Streets in Buffalo, New York. In addition, Siegel, Kelleher & Kahn requests judgment against Claimant for the amount of disbursements allegedly incurred in the pursuit of this claim and recognition of an attorney’s lien.

The Code of Professional Responsibility DR2-110(C)(1)(d); 22 NYCRR 1200.15(c)(1)(iv) permits a law firm to withdraw as counsel upon a showing of good and sufficient cause for withdrawal and notice to the client (Heinke Assocs. v Liberty Natl. Bank, 142 AD2d 929 [1988]). Siegel, Kelleher & Kahn has provided the Court with a copy of the green receipt card evidencing service upon Claimant of the order to show cause and accompanying affidavit of Timothy G. O’Connell, Esq. Claimant has failed to respond or object to the motion to withdraw, and Defendant takes no position on it. Further, the affidavit of Timothy G. O’Connell, Esq. in support of the motion indicates that irreconcilable differences have arisen between counsel and Claimant which prevent counsel from continuing to represent Claimant with respect to this matter. Accordingly, counsel’s motion to withdraw is granted.

Siegel, Kelleher & Kahn’s request for a judgment against Claimant for disbursements and for an attorney’s lien is more problematic. At paragraph 10 of Mr. O’Connell’s affidavit, it is alleged that $851.17 in disbursements were incurred “in the pursuit of this claim.” The last two items listed, however, were for copying charges and other miscellaneous charges under date of April 4, 2007, after the claim had been filed and before this motion was filed, leaving a question as to whether these expenses were incurred in the pursuit of the claim or in pursuit of this motion. Moreover, there appear to be five separate entries for process server fees without any explanation as to what was served and on whom. Neither the request for a judgment for disbursements nor the request for an attorney’s lien can be granted at this time as a hearing is necessary to determine Siegel, Kelleher & Kahn’s right to disbursements and to determine whatever rights counsel may have to a charging lien pursuant to § 475 of the Judiciary Law or otherwise.

Finally, counsel for Defendant advises the Court and Claimant that there are several items of discovery which remain outstanding. It is the practice of this Court, however, to stay further proceedings for sixty (60) days to give Claimant an opportunity to secure new counsel. If at the expiration of this sixty (60) day period, Claimant secures new counsel and/or advises the Court and defense counsel of her intention to proceed pro se, the Court will, at that time, schedule a conference to discuss a discovery order.

Based on the foregoing, it is hereby

ORDERED, that Siegel, Kelleher & Kahn’s motion M-73483 to withdraw as counsel is granted subject to the conditions set forth in the remaining ordering paragraphs; and it is further

ORDERED, that within fifteen (15) days of the filing of this Decision and Order, Siegel, Kelleher & Kahn shall serve a filed-stamped copy upon Claimant by regular first class mail and by certified mail, return receipt requested, at Claimant’s last known address, and upon Defendant by regular mail; and shall file an affidavit of such service, with the return receipt attached, with the Clerk of the Court. Upon the Clerk’s receipt of the affidavit of service, counsel shall be relieved from representation of Claimant; and it is further

ORDERED, that all proceedings herein are stayed for sixty (60) days from the filing of this Decision and Order in which time Claimant shall secure new counsel who shall file a Notice of Appearance with the Clerk of the Court or Claimant shall notify the Clerk of the Court (New York State Court of Claims, PO Box 7344, Capitol Station, Albany, New York 12224-7344) and the attorney for the State of New York (William D. Lonergan, Assistant Attorney General, 107 Delaware Avenue, 4th Floor, Buffalo, New York 14202-3473) in writing of her intention to proceed without counsel (pro se); and it is further

ORDERED, that if Claimant fails to appear by new counsel or fails to notify the Clerk of the Court and the Defendant of her intention to proceed pro se within sixty (60) days of the filing of this Decision and Order, Claim number 113351 will be deemed dismissed for her default (22 NYCRR 206.15), and no further order of this Court will be required; and it is further

ORDERED, that Siegel, Kelleher & Kahn’s requests for a judgment against Claimant for disbursements and for a charging lien are denied without prejudice pending final resolution of this claim at which time counsel may request a hearing to determine its rights in that regard.




July 16, 2007
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[2]. On February 21, 2007, the law firm of Siegel, Kelleher & Kahn filed a “notice of claim.” Counsel is confusing practice in this Court with Supreme Court practice. An action in the Court of Claims is commenced by the filing and service of a claim, not a notice of claim. This document is being appropriately referred to as a claim.