New York State Court of Claims

New York State Court of Claims

FLOYD v. NEW YORK STATE THRUWAY AUTHORITY, #2007-037-060, Claim No. 105256, Motion No. M-73182


Synopsis



Case Information

UID:
2007-037-060
Claimant(s):
R. L. FLOYD
Claimant short name:
FLOYD
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105256
Motion number(s):
M-73182
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Cellino & Barnes, P.C.By: John C. Murrett, Jr., Esq.
Defendant’s attorney:
Lustig & Brown, LLPBy: James J. Navagh, Esq.
Third-party defendant’s attorney:

Signature date:
January 17, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to the motion of Claimant’s counsel


to withdraw as counsel for Claimant:

1. Order to show cause dated April 5, 2007 and filed April 9, 2007;

2. Supporting affidavit of John C. Murrett, Jr., Esq. sworn to April 5, 2007, with

annexed Exhibits A-C;

3. Affidavit of James J. Navagh, Esq. sworn to April 12, 2007 regarding Defendant’s

position on the motion;

4. Affirmation of John C. Murrett, Jr., Esq. dated October 29, 2007, with annexed

Exhibits A-C in support of the affidavit of service;

5. Supplemental affidavit of John C. Murrett, Jr., Esq. sworn to November 26, 2007,

with annexed Exhibits A-B.


Filed papers: Notice of Claim[1] filed November 26, 2001; Amended Answer filed December 10, 2001.

This is an action for personal injuries which arises out of an incident which occurred in September of 1999 while Claimant was working as a painter on the Grand Island Bridge. A brief review of the procedural history of this action will help to explain its present posture.

By order dated October 22, 2001, the Honorable Edgar C. NeMoyer granted Claimant’s motion for permission to late file a claim based on an alleged violation of § 240 (1) of the Labor Law of the State of New York. Before this claim came on for trial, disagreements and a breakdown in communication developed between Claimant and his counsel. Claimant’s counsel brought this motion on by order to show cause for permission to withdraw as counsel.[2] Shortly before the motion to withdraw was filed, the Court of Appeals issued its decision in Kolnacki v State of New York, 8 NY3d 277 (2007) in which the Court held that a claim that failed to state the total sum claimed deprived the Court of subject matter jurisdiction. As a result of the Kolnacki decision, on April 23, 2007, Claimant’s counsel filed a second motion (M-73250) for permission to amend the claim to add a sum certain. Then, on October 16, 2007, Defendant filed a cross-motion (CM-74103) for summary judgment. All three motions were made returnable on the same date. These motions were eventually adjourned as it became apparent that the New York State Legislature was going to amend § 11 (b) of the Court of Claims Act to obviate the problem addressed by the Court of Appeals in Kolnacki. Claimant’s motion to amend the claim (M-73250) was eventually withdrawn after the Governor signed Chapter 606 of the Laws of 2007 which amended § 11 (b) of the Court of Claims Act to except actions for, inter alia, personal injury from the requirement that the claim state a total sum. Defendant’s cross-motion for summary judgment, however, remains pending and is currently scheduled to be heard by the Court on March 26, 2008. It is with this procedural history in mind that the Court must now consider the present motion to withdraw as counsel.

The Code of Professional Responsibility permits an attorney to withdraw from representing a client if the client’s conduct “renders it unreasonably difficult for the lawyer to carry out employment effectively” (DR2-110[C][1][d]; 22 NYCRR 1200.15[c][1][iv]). In order to withdraw, the attorney must demonstrate reasonable notice to the client and good and sufficient cause for the withdrawal (see Matter of Dunn, 205 NY 398 [1912]; J. M. Heinike Assocs. v Liberty Natl. Bank, 142 AD2d 929 [1988]).

The order to show cause signed by the Court on April 5, 2007, directed service of the motion papers upon Defendant by regular mail and upon Claimant by regular mail and by certified mail, return receipt requested. Counsel supplied the Court with an affidavit regarding service upon Claimant and Defendant in compliance with the order to show cause. Claimant failed to respond to or otherwise communicate with the Court regarding this motion. In an affirmation dated October 29, 2007, Claimant’s counsel advised that the attempt to serve Claimant with a copy of the motion papers to withdraw as counsel by certified mail, return receipt requested, had failed as the envelope containing the motion papers remained unclaimed. Because the Court was concerned whether Claimant had received notice of the pending motion and of the Defendant’s motion for summary judgment, the Court directed Claimant’s counsel to personally serve Claimant. Counsel’s supplemental affidavit sworn to November 26, 2007 outlined counsel’s futile attempt to personally serve Claimant.

Defendant did not oppose the motion to withdraw as counsel. Rather, Defendant requested that the Court allow Claimant only thirty (30) days within which to secure new counsel.

The original affidavit of John C. Murrett, Jr., Esq, sworn to April 5, 2007, set forth sufficient factual allegations indicating that irreconcilable differences had arisen regarding the prosecution of this claim which would impair the ability of Cellino & Barnes, P.C., successor of The Barnes Firm, P.C., to adequately and properly represent Claimant. Moreover, the Claimant appeared in Court on the return date of this motion and the animus between Claimant and his counsel was so apparent that it was clear that the attorney-client relationship was irreconcilably broken. Based on the foregoing, the Court finds that reasonable notice to Claimant and a sufficient showing of good cause to withdraw as counsel has been established. Accordingly, it is hereby

ORDERED, that the motion of The Barnes Firm, P.C., now known as Cellino & Barnes, P.C., to withdraw as counsel for Claimant (M-73182) is granted pursuant to CPLR 321 (b) (2) and the remaining terms and conditions of this Order; and it is further

ORDERED, that within fifteen (15) days of the filing of this Decision and Order, withdrawing counsel shall serve a filed stamped copy upon Claimant by regular mail and by certified mail, return receipt requested, at Claimant’s last known address, and upon the Defendant by regular mail, and shall file an affidavit of such service with the Clerk of the Court; and it is further

ORDERED, that within fifteen (15) days of the filing of this Decision and Order, withdrawing counsel shall make and provide Claimant at his last known address with a copy of his file by certified mail, return receipt requested, and shall file an affidavit of compliance with the Clerk of the Court. Upon the Clerk’s receipt of the affidavit of service and the affidavit of compliance, counsel shall be relieved from representation of Claimant; and it is further

ORDERED, that all proceedings herein are stayed for forty-five (45) 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, P.O. Box 7344, Capitol Station, Albany, NY 12224) and the attorney for the New York State Thruway Authority (James J. Navagh, Esq., Lustig & Brown, LLP, P.O. Box 9077, Buffalo, NY 14231-9077) in writing of his intention to proceed without counsel (pro se); and it is further

ORDERED, that if Claimant fails to appear in person (pro se) or by new counsel on March 26, 2008, the return date of Defendant’s motion for summary judgment, Claim No. 105256 will be deemed dismissed for his default (22 NYCRR 206.15), and no further order of the Court will be required.



January 17, 2008
Buffalo, New York

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




[1]. An action is commenced in the Court of Claims by the filing and service of a claim, not a notice of claim.
[2]. Claimant was initially represented by the law firm of Cellino & Barnes, P.C. The motion to withdraw as counsel was, however, brought by The Barnes Firm, P.C. as successor to Cellino & Barnes, P.C. This same law firm is now, once again, known as Cellino & Barnes, P.C.