New York State Court of Claims

New York State Court of Claims

AUDI v. STATE OF NEW YORK, #2007-039-058, Claim No. 108796, Motion No. M-73574


Counsel’s unopposed application to be relieved on the grounds that claimant has failed to communicate or cooperate with him, and that he has reservations regarding the merit of the claim, is granted.

Case Information

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):

James H. Ferreira
Claimant’s attorney:
Elmer Robert Keach, III, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen MaherAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


By order to show cause signed June 11, 2007, Elmer Robert Keach, III, Esq., attorney of record for claimant, seeks to be relieved as counsel on the grounds that claimant has failed to communicate or cooperate with him and that he has reservations regarding the merit of the claim. 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.” 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. In support of his request, counsel offers his own affirmation, as well as copies of three letters that he sent to claimant over a period of approximately nine months. In each letter, counsel relays his attempts to contact claimant by phone and requests that claimant contact him to discuss the claim. Moreover, there is no opposition to the request. Counsel’s certificate of service shows that on June 14, 2007 a copy of the order to show cause and supporting papers were served upon claimant by certified mail, return receipt requested and upon defendant by regular mail. Additionally, by letter dated September 28, 2007 and sent to claimant by certified mail, return receipt requested, the Court provided claimant with additional time to submit a response to counsel’s request.

Accordingly, it is hereby

ORDERED that M-73574 is granted and that Elmer Robert Keach, III, Esq. is relieved of counsel in this matter; and it is further

ORDERED that prosecution of this claim is stayed for sixty days from the filing of this Decision and Order to permit claimant the opportunity to retain new counsel, if he has not done so already, and file a notice of appearance with the Clerk of the Court; and it is further

ORDERED that a telephone status conference will be conducted in this matter on April 24, 2008 at 10:00 AM and that chambers will initiate the call. Claimant’s failure to appear at the above scheduled telephone conference may result in dismissal of this claim (see 22 NYCRR §206.10 [g]); and is further

ORDERED that, within fourteen days from the filing date hereof, counsel is directed to file proof of service of this Decision and Order upon claimant by certified mail, return receipt requested and by ordinary mail upon defendant, as well as proof of service of the complete file upon claimant.

January 24, 2008
Albany, New York
Judge of the Court of Claims

Papers Considered
  1. Order to Show Cause for Leave of Counsel to Withdraw filed June 14, 2007;
  2. Affirmation in Support of Motion to Withdraw as Counsel dated June 7, 2007 with exhibits; and
  3. Certificate of Service of Order to Show Cause Upon Claimant and Defendant.