New York State Court of Claims

New York State Court of Claims

HAKES v. THE STATE OF NEW YORK, #2007-044-557, Claim No. 111168, Motion No. M-73187


Claimant’s counsel’s motion to withdraw as attorney of record is granted, where claimant and counsel strongly disagree on both the merits of the claim and the merits of the State’s possible limited immunity defense.

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):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


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 record.[1] 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 [2001], quoting Matter of Dunn [Brackett], 205 NY 398, 403 [1912]). 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 [1997], lv denied 91 NY2d 809 [1998]; Ashker v International Bus. Machs. Corp., 201 AD2d 765 [1994]). 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 [1996]; Zelkha v Ezati, 140 AD2d 338 [1988]).

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 reasonable notice.

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 matter.[2]

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, 2007.[3]

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.

July 16, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s counsel’s application to withdraw as counsel:

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.

4) Letter from Lt. Col. Gordon A. Hakes, filed on June 11, 2007, in opposition to the Order to Show Cause.

Filed papers: Claim filed on July 22, 2005; Verified Answer filed on August 18, 2005.

[1]. Defendant’s motion for summary judgment, previously rescheduled for March 14, 2007, was again adjourned without date due to the pendency of this motion.
[2]. In his letter dated January 11, 2007, claimant complained that he did not receive notice of defendant's motion for summary judgment in a timely manner and that counsel sent correspondence to a Post Office Box in Painted Post, NY even though he knew that claimant was incarcerated. Claimant also complained that counsel’s representation to the Court that there would be no opposition to the summary judgment motion was an “unjust position” and made without his knowledge.
[3]. The Court has verified that claimant was released from custody on June 18, 2007.