New York State Court of Claims

New York State Court of Claims

SCHUTT v. STATE OF NEW YORK, #2008-040-026, Claim No. 113045, Motion No. M-74567


Motion by counsel to withdraw granted.

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:
The Law Office of Miriam C. HealyBy: Miriam C. Healy, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Kimberly A. Kinirons, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant’s counsel, by Order to Show Cause, has moved pursuant to CPLR § 321(b)(2), for an order granting her leave to withdraw. Counsel has submitted proof of service that Claimant and the Attorney General have been served with copies of the motion. As directed by the Court, Claimant was served by regular mail and priority registered mail, return receipt requested, and the State was served by certified mail, return receipt requested.

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., 279AD2d 813, 814 [3d Dept 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 [2d Dept 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 [1st Dept 1987]).

Counsel has submitted two (2) affidavits in support of the motion and Claimant has submitted three (3) papers in opposition. Counsel asserts that she has never met her client[1] and that all contacts have been by telephone, mail and e-mail (Healy February 14, 2008 Affidavit, ¶ 2). Ms. Healy further avers that, on December 27, 2007, she spoke at length on the telephone with Ms. Schutt regarding the strengths and weaknesses of her case, as well as the cost/benefits of continuing the case (Healy December 28, 2007 Affidavit, ¶ 10). In reading the papers submitted by counsel and Claimant it is abundantly clear to the Court that they disagree regarding the strengths and weaknesses of the case, Claimant has lost confidence in counsel’s abilities, and that irreconcilable differences do exist between them sufficient to warrant the granting of this Motion.

Based upon the record, the Court can see no significant resultant prejudice to Claimant if counsel’s request is granted and counsel has demonstrated sufficient cause to be permitted to withdraw (Solomon v Solomon, 172 AD2d 1081 [4th Dept 1991]; Sansiviero v Sanders, 117 AD2d 794 [2d Dept 1986], appeal dismissed 68 NY2d 805 [1986], rearg denied 68 NY2d 998 [1986]).

The motion is granted and the Chief Clerk is directed to amend his records by replacing Movant’s name as attorney of record and, for now, indicating that Claimant will act on her own behalf. Ms. Healy is directed to turn over any and all records relating to this action to Claimant, or to new counsel for Claimant, upon request. Claimant is directed to find new counsel or advise the Court she is appearing pro se within ninety (90) days of the date of filing of this decision and order. This Claim was filed November 27, 2006 by Claimant, pro se. Ms. Healy appeared on Claimant’s behalf in July 2007 and based upon a review of the Court’s file, no Preliminary Conference Order setting a discovery timetable has been issued by the Court, nor has any discovery taken place. Thus, if she is still interested in prosecuting her claim, Claimant will have time to retain new counsel and Defendant will not be prejudiced by any delay in trial attributable to counsel’s withdrawal.

Therefore, based upon the foregoing, it is ORDERED that Claimant’s counsel’s motion for leave to withdraw is granted and it is further ORDERED that Claimant’s counsel mail, by regular mail and priority registered mail, a copy of this Decision and Order to Claimant, at her last known address, and also serve the same upon the Attorney General by first-class mail.

Thereafter, Claimant’s counsel is to file the affidavits of service with the Clerk of the Court.

May 9, 2008
Albany, New York

Judge of the Court of Claims

The following papers were considered on Claimant’s attorney’s motion for an order permitting withdrawal:

Papers Numbered

Order to Show Cause, Affidavit
and Exhibits Attached 1

Letter from Kimberly Kinirons, Esq., AAG,

dated January 18, 2008 2

Notice of Claimant to Honorable Judge 3

Answer (of Claimant) of Received Affidavit 4

Movant’s Affidavit dated February 14, 2008 5

Claimant’s Affidavit 6

Filed Papers: Claim and Answer

[1].Claimant now lives overseas.