New York State Court of Claims

New York State Court of Claims

TRUDEAU v. THE STATE OF NEW YORK, #2007-038-562, Claim No. 109703, Motion No. M-73775


Synopsis

Counsel's motion to withdraw (CPLR 321[b][2]) granted. In camera conference with claimants and counsel revealed irreconcilable differences between the attorney and the clients regarding the proper course to be pursued in the litigation, providing good and sufficient cause for the Court to permit counsel to withdraw.

Case Information

UID:
2007-038-562
Claimant(s):
WILLIAM E. TRUDEAU and CLAIRE TRUDEAU
Claimant short name:
TRUDEAU
Footnote (claimant name) :

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

Third-party claimant(s):
WILLIAM E. TRUDEAU and CLAIRE TRUDEAU
Third-party defendant(s):

Claim number(s):
109703
Motion number(s):
M-73775
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ, P.C.By: James R. Denlea, Esq.
Defendant’s attorney:
CARTER, CONBOY, CASE, BLACKMORE, MALONEY & LAIRD, P.C.
By: Terrence Hannigan, Esq.
Third-party defendant’s attorney:

Signature date:
September 24, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By Order to Show Cause dated July 17, 2007, James R. Denlea, Esq., (hereinafter “movant”), attorney of record for claimants, moved pursuant to CPLR 321 (b) to have his law firm relieved as counsel because certain unspecified “issues have arisen that will preclude [his] firm from further representing claimants” (Denlea Affirmation, June 28, 2007, ¶ 2).[1] Upon the permission of the Court, there were no appearance on the return date of the Order to Show Cause, but it was subsequently determined that the Court could not render a decision on the Order to Show Cause solely on the papers submitted. On September 17, 2007, a court conference was conducted with claimants, John V. D’Amico, Esq. (an associate in movant’s firm representing movant) and defendant’s counsel appearing. CPLR 321 (b) (2) provides, inter alia, that “[a]n attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney [and] to the attorneys of all other parties in the action. . .” An attorney requesting to withdraw from representation must demonstrate “a good and sufficient cause . . . upon reasonable notice” (Lake v M.P.C. Trucking, 279 AD2d 813, 814 [3d Dept 2001], quoting Matter of Dunn, 205 NY 398, 403 [1912]; see also Code of Professional Responsibility DR2-110 [22 NYCRR 1200.15 (c)]). Good and sufficient cause may exist when there are “irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in [the] litigation” (id. quoting Winters v Rise Steel Erection Corp., 231 AD2d 626 [2d Dept 1996]). Whether good and sufficient cause exists is a matter within the Court’s discretion (see Hunkins v Lake Placid Vacation Corp., 120 AD2d 199, 201 [3d Dept 1986]).

During an in camera discussion with movant and claimants at the September 17, 2007 conference – the substance of which the Court declines to disclose in order to preserve the attorney-client privilege – while there appeared to be no acrimony between movant and claimants, it was made clear to the Court that irreconcilable differences exist between movant and claimants over the proper course to be pursued in this litigation. Therefore, the Court finds that movant has made a showing of good and sufficient cause for withdrawal as counsel.

Accordingly, it is

ORDERED, that the law firm of Meiselman, Denlea, Packman, Carton & Eberz, P.C. is permitted to withdraw as attorney of record to claimants pursuant to CPLR 321 (b), and it is further

ORDERED, that movant shall serve a filed-stamped copy of this Decision and Order upon claimants and defendant by regular mail within five days of receipt of such Decision and Order by movant, and it is further

ORDERED, that movant shall file an affidavit of such service with the Clerk of the Court, and upon receipt of such affidavit, movant shall be relieved from representation of claimants, and it is further

ORDERED, that within ninety (90) days of the filing of this Decision and Order, claimants may retain new counsel who shall immediately file a notice of appearance, or claimants shall, within ninety (90) days, notify chambers in writing of their intention to proceed pro se (without counsel) or to discontinue the claim, and it is further

ORDERED, that in the event claimants fail to appear pro se or by new counsel and fail to notify the Court in writing that they intend to discontinue the claim within the 90 day period, the claim will be deemed dismissed (see 22 NYCRR 206.15), and no further order of this Court will be required.


September 24, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers Considered

(1) Order to Show Cause, filed July 24, 2007;

(2) Affirmation of James R. Denlea, Esq., dated June 28, 2007;

(3) Affidavit of Service of Order to Show Cause, sworn to July 20, 2007;

(4) Correspondence of James R. Denlea, Esq., dated August 2, 2007.


[1]. While movant declined to elaborate on the specific issues that preclude movant’s firm from continuing its representation of claimants out of “deference to the claimants and respecting their attorney-client privilege,” movant stated that he would be “prepared to address the specifics of these issues in camera” (Denlea Affirmation, June 28, 2007, ¶ 2).