New York State Court of Claims

New York State Court of Claims

PERILLO v. STATE OF NEW YORK, #2007-039-013, Claim No. 106704-A, Motion No. M-72835


Synopsis


Following review of unopposed motion for permission to be relieved as counsel, Court determined that good and sufficient cause existed for termination of the attorney-client relationship.

Case Information

UID:
2007-039-013
Claimant(s):
FERDINANDO T. PERILLO and FRED’S AUTO INC.
Claimant short name:
PERILLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106704-A
Motion number(s):
M-72835
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Frank M. Putorti, Jr., P.C.By: Frank M. Putorti, Jr., Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael W. Friedman Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 19, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause signed January 8, 2007, Frank M. Putorti, Jr., P.C., attorney of record for claimants, seeks to be relieved as counsel on the grounds that claimants have failed to communicate or cooperate with him, that claimants have expressed a desire to terminate Mr. Putorti’s representation and that claimants have retained new counsel. Counsel’s request is not opposed.

CPLR 321 (b) (2) provides 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, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.” Here, in support of his request, counsel offers proof of service of the order to show cause and supporting affirmation upon claimants, defendant and Robert Stoddard, Esq., the attorney purported to be claimants’ new counsel.

It is well settled that “an attorney may terminate the attorney-client relationship ‘at any time for a good and sufficient cause and upon reasonable notice’ ” (Lake v M.P.C. Trucking Inc., 279 AD2d 813, 814 [2001], quoting Matter of Dunn, 205 NY 398, 403 [1912]). “Good and sufficient cause has been found to 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 [1996]). Moreover, “DR2-110 (C) (1) (d) of the Code of Professional Responsibility states that an attorney’s withdrawal from employment is permissible where a client ‘renders it unreasonably difficult for the lawyer to carry out his employment effectively’ ” (Holmes v Y.J.A. Realty Corp., 128 AD2d 482, 483 [1987]).

Upon review of counsel’s papers, the Court finds that good and sufficient cause exists for termination of the attorney-client relationship herein. Moreover, there is no opposition to the request. Accordingly, prosecution of this claim is stayed for sixty days from the filing of this Decision and Order to permit claimants the opportunity to retain new counsel, if they have not done so already, and file a notice of appearance with the Clerk of the Court.

A telephone status conference will be conducted in this matter on July 5, 2007 at 10:00 AM and chambers will initiate the call. Claimants’ failure to appear at the above scheduled telephone conference may result in dismissal of this claim (see 22 NYCRR §206.10 [g]).

Additionally, within fourteen days from the filing date hereof, counsel is directed to file proof of service of this Decision and Order upon claimants by certified mail, return receipt requested and by ordinary mail upon defendant and to claimants’ last known address, as well as proof of service of the complete file upon claimants.

Accordingly, it is hereby ordered that Frank M. Putorti, Jr., P.C. is relieved of counsel in this matter.

April 19, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered:
  1. Order to Show Cause to Relieve Counsel filed January 16, 2007;
  2. Attorney Affirmation in Support of Motion to Relieve Counsel affirmed to on December 11, 2006;
  3. Affidavit of Mailing upon Fred Perillo sworn to on January 12, 2007;
  4. Affidavit of Mailing upon Michael W. Friedman, AAG sworn to on January 12, 2007; and
  5. Affidavit of Mailing upon Robert Stoddard, Esq. sworn to on January 12, 2007.