New York State Court of Claims

New York State Court of Claims

PERRY v. THE STATE OF NEW YORK, #2008-015-061, Claim No. 112362, Motion No. M-74920


Attorney's motion for leave to withdraw as counsel for claimant was denied.

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:
Basch & Keegan, LLPBy: Derek J. Spada, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 28, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's counsel, Basch & Keegan, LLP, moves by order to show cause to withdraw as counsel for the claimant pursuant to CPLR 321(b) (2). The order to show cause and supporting papers were properly served on both the claimant and defense counsel. Claimant opposes the motion. The claim sets forth causes of action for personal injuries which allegedly occurred on August 11, 2005 when an improperly secured retractable electrical cord fell from the ceiling of Building 10 at the Franklin Correctional Facility and struck the claimant causing injuries to his head and shoulder. The claim also sets forth a cause of action arising out of injuries sustained at Franklin Correctional Facility on December 5, 2005 when the claimant was using an electrically powered saw and "wood kicked back" injuring his finger (see amended claim, ¶ 8).

A claim was filed by the claimant pro se on May 22, 2006 following the alleged service of a notice of intention on September 5, 2005 (see claim, ¶ 14). On July 27, 2006 the law firm of Basch & Keegan, LLP, filed a notice of appearance on behalf of the claimant and on July 31, 2006 an amended claim was filed.[1] The note of issue was due to be filed in this action on September 28, 2007 pursuant to an Order of this Court dated October 26, 2006. No note of issue having been filed, on April 14, 2008 the Court served the parties with a demand that claimant resume prosecution of this action and file a note of issue within ninety days.

In support of the instant order to show cause seeking to be relieved as counsel for the claimant, Derek Spada, Esq., indicates that when Basch & Keegan, LLP was retained as counsel for the claimant he had been released from prison and appeared to have rehabilitated himself. Mr. Spada indicates that Mr. Perry was recently arrested and again incarcerated. In support of the instant application, Mr. Spada sets forth in his affirmation the following:
"4. . . . This firm will be unable to effectively represent Mr. Perry any longer due to his current incarceration. Mr. Perry's recidivism also compromises his civil case due to credibility issues. Mr. Perry's current incarceration creates a substantial hardship for Basch & Keegan, LLP, namely he is currently in Raybrook, New York and we are in Kingston, New York. Additionally Mr. Perry would have to be transported for an independent medical examination if the State chooses to have one, and would also have to be transported to his trial, which would most likely take place in Albany, New York.

5. In light of these circumstances, it is in the best interest of Mr. Perry for Basch & Keegan, LLP, to withdraw as his counsel. Mr. Perry and other interested parties would not suffer any prejudice from our withdrawal as counsel."
In order to terminate the attorney-client relationship "good and sufficient cause" must be found to exist (Lake v M.P.C. Trucking, Inc., 279 AD2d 813 [2001], quoting Matter of Dunn, 205 NY 398 [1912]). Good and sufficient cause has been found to exist, inter alia, where a client's conduct has "rendered it unreasonably difficult to effectively carry out the legal employment" (Ashker v International Bus. Machs. Corp., 201 AD2d 765 [1994]; Valente v Seiden, 244 AD2d 799 [1997]; see also 22 NYCRR 1200.15[c][1][iv]).

Whether or not good cause exists rests within the discretion of the Court (George v George, 217 AD2d 913 [1995]). The right to withdraw as counsel for a client is not absolute, however, and absent a "sound reason" permissive withdrawal is properly denied (Matter of Jamieko A., 193 AD2d 409, 410 [1993]). Contrary to Mr. Spada's assertions, the Court does not find that claimant's incarceration renders it unreasonably difficult for his firm to carry out its employment effectively.

Counsel's inconvenience is not a sufficient basis for withdrawal in view of the fact that the claimant has already been deposed and any further depositions would presumably involve persons from Franklin Correctional Facility where the claimant was incarcerated when the alleged incidents occurred. As far as the convenience of counsel, therefore, nothing has changed from the date the firm was retained. The mere fact of the claimant's "recent" incarceration is certainly not an insurmountable hurdle to the prosecution of this claim.[2] Presumably after two years as attorneys of record in this matter, significant discovery has taken place and what discovery remains to be completed, if any, should, at this stage of the litigation, be minimal.

Lastly, the Court cannot agree that such withdrawal is in the best interest of the claimant as well as the law firm. At this stage of the litigation, it cannot be concluded, as counsel avers, that the claimant will suffer no prejudice in the event withdrawal is permitted. Notably, the note of issue is now overdue and counsel has failed to resume prosecution of the action in accordance with the 90-day demand served by the Court. Failure to file a note of issue as previously directed by the Court may serve as the basis of a motion to dismiss for failure to prosecute.

Based on the foregoing, the movant's application to be relieved as counsel is denied.

July 28, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Order to show cause dated April 30, 2008;
  2. Affirmation of Derek J. Spada dated April 24, 2008;
3. Letter from Paul F. Cagino dated April 29, 2008;
4. Letter from claimant, Dean Ralph Perry, dated April 30, 2008 with attachments.

[1]. The amended claim alleged that notices of intention were served on September 5, 2005 and January 19, 200[6].
[2]. Claimant's counsel failed to provide the date of the claimant's incarceration.