Claimant commenced this action to recover for damages to his property allegedly
caused by flooding that took place on July 22, 2003. Defendant State of New
York (defendant) answered and asserted various affirmative defenses. Defendant
also filed and served a motion for summary judgment (Motion No. M-72061)
returnable August 23, 2006. However, the Court was notified by counsel for the
claimant that claimant had filed a proceeding in Bankruptcy Court and that a
motion by the bankruptcy estate to abandon this claim was pending. Accordingly,
the Court adjourned the summary judgment motion without date. During the
adjournment and on his own accord, claimant filed papers in opposition to
defendant’s motion for summary judgment. The Bankruptcy Court granted the
Trustee’s motion and by order dated July 28, 2006, the estate’s
rights in and to Claim No. 111168 were deemed abandoned. Counsel for claimant
now moves, by order to show cause, to withdraw as attorney of
Claimant opposes the motion. Counsel
for defendant takes no position on the motion.
“It is the general rule 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, 279
AD2d 813, 814 , quoting Matter of Dunn [Brackett], 205 NY 398, 403
). In determining whether good cause exists, the Court should consider
the merit of the underlying action, whether there has been an irretrievable
breakdown in the attorney-client relationship, and whether there are
irreconcilable differences which make it unreasonably difficult, if not
impossible, for that attorney to carry out his or her employment effectively
(Valente v Seiden, 244 AD2d 799, 800 , lv denied 91 NY2d 809
; Ashker v International Bus. Machs. Corp., 201 AD2d 765 ).
Differences between the attorney and the client concerning the proper course to
be pursued in litigation, a breakdown in communications, or the client's
complete failure to cooperate with counsel may constitute irreconcilable
differences and are strong grounds for allowing withdrawal (see Winters v
Rise Steel Erection Corp., 231 AD2d 626 ; Zelkha v Ezati, 140
AD2d 338 ).
Counsel for claimant filed an affidavit of service establishing that claimant
was personally served with the order to show cause and supporting papers in a
timely manner as directed by the Court, and claimant therefore received
With respect to the merits of the motion, counsel avers that he served and
filed the claim just prior to the two-year anniversary of the flooding in order
to avoid a statute of limitations defense. Counsel avers that he advised
claimant that expert testimony would be necessary to establish that the flooding
resulted from defendant’s negligence, but as of March 9, 2007, claimant
had not remitted any funds to retain an expert. Counsel also avers that he
advised claimant that the State may have a valid limited immunity defense, and
therefore counsel was unwilling to advance the funds necessary to retain an
expert. Counsel avers that the Bankruptcy Trustee, after consultation with an
independent attorney, decided to abandon this claim as a potential asset of the
bankruptcy estate. Counsel suggests that the estate's abandonment of the claim
is an indication that claimant is unlikely to succeed on the merits of his
claim. Counsel also notes that claimant has been incarcerated and transferred
among various correctional facilities without informing counsel of the new
mailing addresses. Counsel states that claimant’s incarceration and its
related transfers made contacting him and working on this case more difficult.
Counsel contends that claimant’s personal response to the motion for
summary judgment is a strong indication that he wishes to proceed pro se in this
In opposition, claimant denies that counsel requested him to remit the fees
necessary to retain an expert. Claimant states that he requested that the
Bankruptcy Trustee abandon this claim because he and counsel were familiar with
the local situation and would be more successful in pursuing this matter.
Claimant contends, with questionable relevance, that because counsel took an
oath under the Federal Constitution, he should be required to pursue this
action, in part so that the federally funded highways remain open for rapid
movement of troops and emergency vehicles. Claimant also contends that the
State’s defense in the underlying claim is weak because “no one
should be allowed to hide under the umbrella of immunity in not performing their
governmental job to their citizens.” Claimant advises that he is
available to work with counsel after June 18,
The papers submitted on this motion reveal that claimant and counsel strongly
disagree on both the merits of the claim and the merits of defendant's possible
limited immunity defense. Further, claimant and counsel also obviously differ
on the interpretation of the Bankruptcy Trustee’s abandonment of this
claim. Moreover, claimant has clearly failed to keep counsel informed of his
address changes during his incarceration, making it difficult for counsel to
communicate with him. Because claimant does not concur with counsel’s
opinion of the case or trust counsel’s advice, the Court finds that there
is an irretrievable breakdown of the attorney-client relationship, and given
counsel’s assessment of this claim, his continued representation of
claimant would be unreasonably difficult, if not impossible (Lake v M.P.C.
Trucking, supra; Valente v Seiden, supra).
The Court thus finds that there is good and sufficient cause to terminate the
attorney-client relationship, and counsel’s motion to withdraw as attorney
of record is granted. The Clerk of the Court is directed to amend the Court's
records to reflect that claimant Gordon Hakes, d/b/a Painted Post Car Mart, P.O.
Box 109, Painted Post, New York 14870, now represents himself. Claimant's
former counsel, Jacob P. Welch, shall make and provide to claimant a copy of his
file, at the address set forth above, by certified mail, return receipt
requested, within 14 days of the filing date of this decision and order, and
Attorney Welch shall submit to the Clerk of the Court an affidavit of
compliance. All proceedings in Claim No. 111168 are hereby stayed for 30 days,
so that claimant may have an opportunity to retain new counsel (see CPLR
321 [c]) should he so desire. Whether claimant represents himself or retains
another attorney, the motion for summary judgment (Motion No. M-72061) is now
returnable on September 12, 2007.
1) Order to Show Cause filed on April 2, 2007; Affidavit of Jacob P. Welch,
Esq., sworn to on March 9, 2007, and attached Exhibits A and B.
2) Affirmation of Joseph F. Romani, AAG, dated February 20, 2007.
3) Affirmation of Joseph F. Romani, AAG, dated March 27, 2007.