New York State Court of Claims

New York State Court of Claims

ELDRIDGE v. THE STATE OF NEW YORK, #2008-030-534, Claim No. 108949, Motion No. M-74866


Claimant’s attorney’s application to be relieved granted upon service on claimant of filed decision and order with proof filed in clerk’s office. Proceedings stayed for 90 days to allow claimant to retain new counsel or proceed pro se. Claimant to advise court of intent to proceed pro se or have his new attorney file a notice of appearance within same 90 day period or claim will be deemed dismissed

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:
Third-party defendant’s attorney:

Signature date:
June 23, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Counsel for Claimant’s application,

brought by Order to Show Cause, to be relieved as Counsel:

1,2 Order to Show Cause; Affirmation of Counsel by Jake Harper, Counsel for Claimant

  1. Affirmation of Service upon Michael Eldridge, Claimant and Barry Kaufman, Assistant Attorney General
  1. Affidavit in Response to Counsel’s Order to Show Cause to be Relieved by Michael L. Eldridge, Claimant and attached papers
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 treatment.

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 22 NYCRR §206.8(c).[1] 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 Salquerro, 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 omitted).” 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 omitted).” 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 continue.

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 that:
1. Permission to withdraw is hereby granted to Jake Harper, Attorney for Claimant upon satisfaction of the requirements of ¶2 hereof.
2. Within fourteen (14) days of the filing of this Decision and Order, Jake Harper shall serve upon Michael L. Eldridge a file-stamped copy of this Decision and Order by certified mail, return receipt requested and by regular mail and upon the defendant by regular mail. Counsel shall thereafter promptly file an affidavit of such service, with the return receipt attached, with the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224). Only upon the Clerk’s receipt of such affidavit with return receipt, shall Jake Harper be relieved from representation of claimant; and
3. No further proceedings shall take place with respect to this claim until ninety (90) days after the filing of this Decision and Order, so as to permit Michael Eldridge to retain new counsel if desired. Michael L. Eldridge shall, within ninety (90) days after the filing of this Decision and Order, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (Barry Kaufman, Assistant Attorney General, New York State Department of Law, 235 Main Street, 3rd Floor, Poughkeepsie, NY 12601 ) in writing of his intention to proceed without counsel (pro se), or file a notice of appearance by a new attorney.
4. If Michael L. Eldridge fails to so notify the Clerk of the Court and the Attorney General’s Office or appear by new counsel within such 90-day period, the claim herein will be deemed dismissed (22 NYCRR 206.15), and no further order of this Court will be required.

June 23, 2008
White Plains, New York

Judge of the Court of Claims

[1].The regulation provides that “[n]o motion by an attorney seeking to be relieved as counsel for a party shall be placed on the calendar unless initiated by order to show cause.”