New York State Court of Claims

New York State Court of Claims

GRIFFEN v. THE STATE OF NEW YORK, #2008-030-548, Claim No. 114444, Motion No. M-75230


Synopsis


Application by attorney for claimant to be relieved from representation brought pursuant to CPLR §321 (b)(2) granted, provided counsel serves client with copy of order and files proof of service of same. Good cause shown as evidenced by breakdown of the attorney/client relationship, making it inappropriate for the representation to continue. Within 90 days, claimant must advise of intent to proceed pro se or notice of appearance must be filed or claim will be

dismisse


Case Information

UID:
2008-030-548
Claimant(s):
EDWARD GRIFFEN, JR.
Claimant short name:
GRIFFEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114444
Motion number(s):
M-75230
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LAUB & DELANEY, LLP.BY: ALFRED C. LAUB, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 6, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision


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 to Withdraw as Counsel, Affirmation in Support by Alfred C. Laub of counsel to Laub and Delaney LLP Attorneys for Claimant, dated June 12, 2008

  1. Affidavit of Service sworn to July 2, 2008
  1. Letter to Court dated June 26, 2008 from Dewey Lee, Assistant Attorney General
5,6 Filed papers: claim, answer

This is an application by counsel of record for the claimant to be relieved from representation 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. Claimant has not submitted any documents in response, and the defendant takes no position with regard to the application. [See Letter to Court dated June 26, 2008 from Dewey Lee, Assistant Attorney General].

The causes of action asserted in the filed claim all arise from a motor vehicle stop by members of the New York State Police on May 27, 2006, when Mr. Griffen was driving on Route 343 in Amenia, New York. Mr. Griffen alleges he was stopped without cause by State Troopers, and thereafter physically assaulted at his home by the same men, and falsely arrested and imprisoned for a period of two (2) days. Issue was joined on or about May 9, 2008.

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. 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 County 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 Hosp., 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, 814 (3d Dept 2001).

Alfred C. Laub, Counsel for Claimant, asks to be relieved from representation of Mr. Griffen based upon a provision in the retainer agreement allowing withdrawal under certain circumstances that have arisen in part, including differences of opinion as to the manner and method by which the claim should be prosecuted. Although counsel attempted to obtain Mr. Griffen’s voluntary consent to allow the firm’s withdrawal, communications broke down and such could not be secured. Mr. Laub states that irreconcilable differences between Mr. Griffen and the firm as to the proper course to pursue in the litigation exist making it impossible to appropriately represent claimant at this juncture. He asks that withdrawal be permitted, and that Mr. Griffen be given a reasonable period of time to secure new counsel.

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. Based upon the information supplied, including a review of the retainer agreement, and correspondence pertinent thereto, 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 claimant has been duly notified of this application, and there has been a showing of good cause to be relieved.
Accordingly, it is ORDERED, that motion no. M-75230 is granted to the extent that: 1. Permission to withdraw is hereby granted to Laub and Delaney LLP, Attorneys for Claimant upon satisfaction of the requirements of ¶2 hereof.
2. Within fourteen (14) days of the filing of this Decision and Order, Laub and Delaney LLP shall serve upon Edward Griffen, Jr. a file-stamped copy of this Decision and Order by both certified mail, return receipt requested and by regular mail. Counsel shall thereafter promptly file an affidavit of such service or attempted service, with the return receipt attached or refusal if any, with the Clerk of the Court. Only upon the Clerk’s receipt of such affidavit with return receipt, or refusal if any, shall Laub and Delaney LLP, 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 Edward Griffen Jr. to retain new counsel if desired. Within ninety (90) days after the filing of this Decision and Order Edward Griffen Jr. shall either (a) 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 (Dewey Lee, AAG, New York State Department of Law, 235 Main Street, 3rd Floor, Poughkeepsie, New York 12601) in writing of his intention to proceed without counsel (pro se), or (b) cause to be filed a notice of appearance by a new attorney.
4. If Edward Griffen, Jr. 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.


August 6, 2008
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
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.”