5,6 Filed Papers: Claim, Answer
This is an application by counsel of record for the claimant to be relieved
pursuant to Civil Practice Law and Rules §321(b). As had been directed in
the Order to Show Cause, the papers were served upon the claimant, and upon the
Attorney General’s Office. The filed claim alleges, among other things,
that claimant fell and suffered injury in the Green Haven Correctional Facility
recreational yard due to defendant’s negligence on July 12, 2003,
exacerbating a previous injury, and thereafter did not receive adequate medical
Civil Practice Law and Rules §321(b)(2) provides that an attorney’s
application to withdraw from representing a client requires a “motion on
such notice to the client of the withdrawing attorney . . . as the court may
direct.” See also
There must be a showing of
good cause and reasonable notice before an attorney will be permitted to
terminate the attorney/client relationship. See e.g. J.M. Heinike
Assocs. v Liberty Natl. Bank
, 142 AD2d 929 (4th Dept 1988). What
constitutes good cause is not an objective determination, but rather lies within
the sound discretion of the trial court. See e.g. People v
, 107 Misc 2d 155 (Sup Ct, NY Co 1980). By way of example, it may
include irreconcilable differences between the attorney and the client with
respect to the proper course to be pursued in litigation, a failure to cooperate
and a “. . . failure to remain in contact with the . . . law firm or to
respond to any of its correspondence . . . (citations
).” Tartaglione v Tiffany
, 280 AD2d 543 (2d Dept
2001); see also Walker v Mount Vernon Hospital
, 5 AD3d 590 (2d
Dept 2004); Winters v Rise Steel Erection Corp
., 231 AD2d 626 (2d Dept
1996). Counsel should “demonstrate that ‘the relationship between .
. . [the clients] and [their] attorney ha[s] deteriorated to the point where
further representation [is] inappropriate’. . . (citations
).” Lake v M.P.C. Trucking
, 279 AD2d 813 (3d Dept 2001).
Jake Harper, Counsel for Claimant, asks to be relieved from representation of
Mr. Eldridge based upon what appears to have become a somewhat adversarial
relationship. Agreeing to represent the claimant after claimant had been
proceeding pro se for some time, and after the matter had been scheduled
for trial, Mr. Harper indicates that from the outset he advised Mr. Eldridge
that as a busy sole practitioner he “. . . would not have the time to
draft regular and frequent correspondence to keep him advised of non-essential
elements of the lawsuit’s progress.” [Affirmation by Counsel,
¶1]. They met at the correctional facility on July 10, 2007, and counsel
filed a Notice of Appearance on July 12, 2007.
Thereafter, counsel secured a discovery schedule with opposing counsel,
memorialized in a preliminary conference order “so ordered” by the
court on August 27, 2007, obtained discovery - including records from the
correctional facility - and served appropriate demands upon opposing counsel.
The preliminary conference order provided that all discovery was to be completed
by June 30, 2008, and that a note of issue and certificate of readiness for
trial be filed by August 1, 2008.
Mr. Harper made a series of demands and requests in pursuit of discovery
throughout the remaining calendar year 2007, and the first quarter of 2008, all
pursuant to the preliminary conference order agreed to by the attorneys.
[Affirmation by Counsel, ¶¶ 6, 7, 8, 9, 10, 12, 13, 16, 17]. He
encountered resistence from the correctional facility and, although he
ultimately did receive copies of documents requested, it took some persistence.
[Ibid. ¶ 19]. Certain aspects of information he sought directly
from claimant, however, was not forthcoming, he avers. [Affirmation by Counsel,
¶ ¶11, 19]. Mr. Harper received a letter from Mr. Eldridge dated
February 18, 2008 questioning counsel’s pursuit of the matter, and noting
claimant’s dissatisfaction with counsel’s investigatory methodology
among other things. [Ibid. ¶11]. It does not appear that counsel
responded to this letter, however, but instead continued with his discovery
pursuits. [Ibid, ¶¶ 11, 12, 13]. Thereafter, counsel received a
copy of a letter claimant wrote to the court dated March 24, 2008. [Ibid.
¶ 14]. He responded to the court - copying the claimant with the response -
and enclosing the letter history of his discovery efforts, including a
description of the documents he finally received from the correctional facility.
[Ibid. ¶¶ 15, 16, 17].
Claimant’s Affidavit in Response essentially confirms that there has been
a breakdown of the attorney/client relationship, by its recitation of the fact
that as an initial matter he did not understand the limitations on the
correspondence that would occur, that he made “inappropriate
remarks” to the attorney due to his perception that communication was
lacking, that he wrote to the court to complain without having communicated with
the attorney, and denying that he did not supply information requested, among
other things. [Affidavit in Response by Michael L. Eldridge, ¶ ¶ 4,
8,10, 12, 14, 15]. Mr. Eldridge states that when he wrote to the court in March
2008, he had not heard from Mr. Harper in seven (7) months, and did not receive
certain correspondence counsel indicates he had forwarded to claimant.
[Ibid. ¶ ¶ 9, 16]. Copies of the correspondence claimant avers
he sent to the attorney evince a degree of skepticism at the outset to
counsel’s representation that did not bode well for a cooperative
experience, including questioning an agreement for representation in July 2007.
[See ibid. attached correspondence].
As noted, what constitutes good cause is not found in an objective test, but
rather lies in the court’s discretion based on all the circumstances.
There is a tone of oversight on claimant’s part making it appear as if the
interests were potentially adverse. Indeed, Mr. Eldridge’s comments about
deficits in the representation evidence a break in trust, as well as failed
communication. The Court agrees that there has been a breakdown of the
attorney/client relationship, making it inappropriate for the representation to
In view of the foregoing, the Court finds that there has been a showing of
good cause to be relieved.
Accordingly, it is ORDERED, that motion no. M-74866 is granted to the extent