New York State Court of Claims

New York State Court of Claims

DEL VALLE v. STATE OF NEW YORK, #2008-039-073, Claim No. 110885, Motion No. M-73031


Synopsis


Counsel’s motion to withdraw is granted. Claimant’s counsel presented the Court with good and sufficient cause for termination of the attorney-client relationship through his own affidavit.

Case Information

UID:
2008-039-073
Claimant(s):
ANGEL DEL VALLE, by his mother and natural guardian, CARMEN DEL VALLE
Claimant short name:
DEL VALLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110885
Motion number(s):
M-73031
Cross-motion number(s):

Judge:
JAMES H. FERREIRA
Claimant’s attorney:
Joseph Odierno, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Kimberly A. KinironsAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 12, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

By order to show cause signed February 13, 2007, Joseph C. Odierno, Esq. moves the Court, on behalf of The Odierno Law Firm, P.C., attorney of record for claimants, for an order permitting The Odierno Law Firm to withdraw as claimants’ counsel. Counsel’s affidavit of service reveals that claimants were served with a copy of the order to show cause and supporting papers on February 20, 2007 and February 26, 2007. In a letter to the Court dated February 21, 2007, defendant states that it knows of no reason to oppose the request. Following an extension of time granted by the Court for claimants to respond, claimants did not submit any opposition to the motion.

CPLR 321 (b) (2) provides that “[a]n attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct.” It is well settled 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 Inc., 279 AD2d 813, 814 [2001], quoting Matter of Dunn, 205 NY 398, 403 [1912]). “Good and sufficient cause has been found to exist when there are ‘irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in the litigation’ ” (id., quoting Winters v Rise Steel Erection Corp., 231 AD2d 626 [1996]). Moreover, “DR2-110 ( c) (1) (d) of the Code of Professional Responsibility states that an attorney’s withdrawal from employment is permissible where a client ‘renders it unreasonably difficult for the lawyer to carry out his employment effectively’ ” (Holmes v Y.J.A. Realty Corp., 128 AD2d 482, 483 [1987]).

Upon review of counsel’s papers, the Court finds that good and sufficient cause exists for termination of the attorney-client relationship. In support of his request, counsel offers his own affidavit wherein he states, among other things, that he received “[a]n amended verified answer with counterclaim for services rendered in the sum of $1,333,747.35 representing treatment,” and that claimant “suffered a fractured leg [and] was treated by casting without any operative procedure.” Counsel states that he spoke with claimant’s mother, who was “willing to discontinue the action,” and that he sent “a letter with a Stipulation of Discontinuance.” Counsel further provides that he subsequently “received a recorded phone message” from claimant’s brother who stated that “he told his mother not to discontinue the case and she had a good case and that Mr. Odierno is being paid by the attorneys for the hospital to discontinue the case.” Finally, counsel contends that “[t]here are major legal and practical differences in processing this case.”

Accordingly, it is hereby

ORDERED that M-73031 is granted, and The Odierno Law Firm, P.C. is relieved of counsel in this matter; and it is further

ORDERED that prosecution of this claim is stayed for sixty days from the filing of this Decision and Order to permit claimants the opportunity to retain new counsel, if they have not done so already, and file a notice of appearance with the Clerk of the Court; and it is further

ORDERED that a telephone status conference will be conducted in this matter on June 3, 2008 at 10:30 AM, and that chambers will initiate the call. Claimants failure to appear at the above scheduled telephone conference may result in dismissal of this claim (see 22 NYCRR §206.10 [g]); and is further

ORDERED that, within fourteen days from the filing date hereof, counsel is directed to file proof of service of this Decision and Order upon claimants by certified mail, return receipt requested and by ordinary mail upon defendant, as well as proof of service of the complete file upon claimants.

March 12, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Order to Show Cause filed March 5, 2007;
  2. Affirmation of Joseph J. Odierno in Support of Order to Show Cause affirmed on February 5, 2007 with exhibits; and
  3. Correspondence from Kimberly A. Kinirons, AAG, dated February 21, 2007.