New York State Court of Claims

New York State Court of Claims

CANNADY v. THE STATE OF NEW YORK, #2007-042-518, Claim No. 110313, Motion No. M-73292


Synopsis


This motion was brought before the court on an order to show cause by claimant’s attorney seeking an order granting leave to withdraw as counsel and to be reimbursed for expenses incurred. There was no response from the claimant and defendant had no opposition to the motion. Claimant’s attorney’s motion is granted to withdraw as attorneys of record for claimant and claimant’s attorney’s motion insofar as reimbursement for expenses incurred is denied without prejudice to whatever rights to compensation counsel may have pursuant to Section 475 of the Judiciary Law or otherwise.

Case Information

UID:
2007-042-518
Claimant(s):
DAVID A. CANNADY
Claimant short name:
CANNADY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110313
Motion number(s):
M-73292
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
BASCH & KEEGAN, LLPBy: DEREK J. SPADA, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 23, 2007
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter was brought before the court by order to show cause by claimant’s attorney seeking an order to withdraw as counsel and to be reimbursed for expenses incurred in the amount of $1,342.75. The court has considered the following papers:

  1. Order to Show Cause, filed April 30, 2007
    1. Affirmation of Derek J. Spada, Esq., dated April 9, 2007
    2. Exhibit A, annexed to the moving papers
    3. Letter of G. Lawrence Dillon, Esq., dated February 23, 2007
__________________________________________

This matter comes before the court on an order to show cause, brought on by claimant’s attorney, seeking an order granting leave to withdraw as counsel and to be reimbursed for expenses of $1,342.75. Claimant has not responded to the motion. The attorney general has indicated that defendant has no opposition to the motion.

This claim arises out of injuries allegedly sustained by claimant as a result of medical malpractice which occurred while claimant was incarcerated at the Oneida Correctional Facility. According to counsel, Basch & Keegan, LLP has represented claimant since 2004.

Counsel seeks the right to withdraw because of claimant’s effective lack of cooperation, resulting from his recent re-incarceration. It is counsel’s position that this latest incarceration will significantly impede the legal action, as it has already resulted in claimant’s failure to appear for his IME and will result in further impediments to counsel’s representation of claimant and the conduct of the trial.

The law is well settled that on a motion to withdraw, there must be a showing of good and sufficient cause and reasonable notice (see Matter of Dunn (Brackett), 205 NY 398; J.M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929). “The determination of whether or not to grant a motion to withdraw rests within the sound discretion of the trial court” (People v Salquerro, 107 Misc 2d 155, 159).

Having reviewed the submissions, I find that there has been a showing of good cause and reasonable notice sufficient to grant the motion, particularly in light of the lack of any submission by claimant and the lack of opposition from the defendant. Therefore, it is ORDERED that:
  1. Basch & Keegan, LLP, is permitted to withdraw as attorneys of record for claimant pursuant to CPLR 321 (b). Basch & Keegan, LLP, shall serve a file-stamped copy of this Decision and Order by certified mail, return receipt requested, and by regular mail on claimant, and upon the State of New York by regular mail, within 30 days of the date of filing of this Decision and Order; and
  1. Basch & Keegan, LLP, shall file proof of service on claimant and the State of New York with the Clerk of the Court. Upon the Clerk's receipt of said proofs of service, counsel shall be relieved from representation of claimant; and
  1. The trial scheduled to commence on July 5, 2007 shall be adjourned without date; and
  1. Claimant shall, within 60 days of service upon him of a file-stamped copy of this Decision and Order, notify the Clerk of the Court and the State of New York in writing of his intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney; and
  1. In the event claimant fails to appear pro se or by new counsel within said 60 day period, the claim herein will be deemed dismissed for his default (22 NYCRR 206.15), and no further order of this court will be required; and
  1. With respect to Basch & Keegan, LLP's request for reimbursement of $1,342.75 in expenses, such is denied without prejudice to whatever rights to compensation counsel may have pursuant to § 475 of the Judiciary Law or otherwise.



July 23, 2007
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims