New York State Court of Claims

New York State Court of Claims

CLARKE v. THE STATE OF NEW YORK, #2009-016-028, Claim No. 112524, Motion No. M-76228


Synopsis


Motion to withdraw as counsel was permitted.

Case Information

UID:
2009-016-028
Claimant(s):
CHRISTOPHER CLARKE
1 1.The caption has been amended to reflect that the sole properly named defendant is the State of New York.
Claimant short name:
CLARKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole properly named defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112524
Motion number(s):
M-76228
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Jeffrey J. Shapiro and Associates, LLCBy: Jeffrey J. Shapiro, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralNo Appearance
Third-party defendant’s attorney:

Signature date:
May 21, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause, the law firm of Jeffrey J. Shapiro & Associates, LLC moves for permission to be relieved as counsel to claimant Christopher Clarke. In his claim, Mr. Clarke alleges that on March 2, 2005, he was on the premises of the New York State Office of Temporary and Disability Assistance in Jamaica, NY while in the course of his employment with AD Winston Corp. He further alleges that because of defendant’s negligence, he was injured when a ladder collapsed underneath him. Pursuant to CPLR §321(b)(2), approval of the court is required in order for an attorney to withdraw as counsel for a litigant. To succeed on such a motion, the attorney must show reasonable notice to the client and good and sufficient cause for the withdrawal. See, e.g., J. M. Heinike Associates, Inc. v Liberty Nat. Bank, 142 AD2d 929, 530 NYS2d 355 (4th Dept 1988). What constitutes good cause lies within the discretion of the court.

Here, with regard to notice, claimant was served with the Order to Show Cause; he did not submit any opposition papers. As to cause, “[i]rreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation . . . [and] an established breakdown in communications between attorney and client . . . are viewed as strong grounds for allowing withdrawal . . .” Waid v State of New York, Ct Cl, June 12, 2002 (unreported, Claim No. 104912, Motion No. M-65176, UID #2002-013-025[2], Patti, J.). Having reviewed counsel’s submissions, I find that such firm has established that there has been a breakdown of a meaningful attorney/client relationship and that the granting of this motion is justified.

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-76228 be granted to the extent that:
1. Jeffrey J. Shapiro and Associates, LLC is permitted to withdraw as attorney of record for claimant Christopher Clarke, subject to ¶2, below. Within thirty (30) days of the date of filing of this Decision and Order, Jeffrey J. Shapiro and Associates, LLC shall serve a file-stamped copy of the Decision and Order on claimant Christopher Clarke by certified mail, return receipt requested and by regular mail, and on defendant by regular mail;
2. Jeffrey J. Shapiro and Associates, LLC shall file proof of service on claimant Christopher Clarke and on defendant with the Clerk of the Court. Upon the Clerk’s receipt of said proofs of service, Jeffrey J. Shapiro and Associates, LLC shall be relieved from representation of claimant Christopher Clarke;
3. Claimant Christopher Clarke shall, within ninety (90) days of service upon him of a file-stamped copy of this Decision and Order, notify the Clerk of the Court and the State of New York in writing of his intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney; and
4. In the event claimant fails to appear pro se or by new counsel within the said ninety (90) day period, the claim herein will be deemed dismissed pursuant to 22 NYCRR 206.15 and no further order of this court will be required.


May 21, 2009
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]This and other decisions of the Court of Claims may be found on the court’s website: www.nyscourtofclaims.state.ny.us.
  2. [3]The Court reviewed claimant’s counsel’s affirmation in support of this motion along with the “Supplemental Attorney’s Affirmation.” No opposition papers were filed.