New York State Court of Claims

New York State Court of Claims

SUTTON v. THE STATE OF NEW YORK, #2009-032-121, Claim No. 115853, Motion No. M-76288


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:
David M. Brickner, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Saul Aronson and Paul F. Cagino, Assistant Attorneys General, Of Counsel
Third-party defendant’s attorney:

Signature date:
May 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


By Order to Show Cause, dated February 17, 2009, David M. Brickner, Esq., seeks an order permitting him to be relieved as claimants’ attorney of record. By letter dated March 2, 2009, counsel for defendant notified the Court that it does not oppose Mr. Brickner’s request to be relieved as counsel. The Court has not received any opposition from the claimants themselves.

In his Affirmation submitted in support of the motion to be relieved as counsel, Mr. Brickner indicates that a potential conflict of interest has arisen as a result of his application for employment with an agency of the State of New York, the Defendant herein. He further indicates that the agency to which he has applied strictly bars employees from representing any party in an action against the State of New York. He states that he has discussed the same with the claimants herein, and that they concur with and fully support his application to be relieved as their counsel.

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.” In the present case, Mr. Brickner offers proof of service of the Order to Show Cause upon claimants and upon defendant’s counsel. Neither the claimants nor the defendant have submitted any opposition to the motion.

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 [3d Dept. 2001], quoting Matter of Dunn, 205 NY 398, 403 [1912]) Rule 1.7 of the Rules of Professional Conduct (22 NYCRR 1200), governing conflicts of interest, states, in pertinent part, that a lawyer shall not represent a client if a reasonable lawyer would conclude that there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.

Upon review of the papers submitted by claimants’ counsel, this Court finds that good and sufficient cause exists for termination of the attorney-client relationship between Mr. Brickner and the claimants. Therefore, the motion of Mr. Brickner to be relieved as counsel for claimants is hereby granted and the following is ORDERED:

1. David M. Brickner, Esq., is permitted to withdraw as attorney of record in the claim herein pursuant to CPLR 321(b).

2. Within 30 days of the filing date of this Decision and Order, David M. Brickner, Esq., shall file an affidavit(s) with the Chief Clerk’s office indicating that service of a copy of this Decision and Order was made upon claimants by first class mail and certified mail, return receipt requested, to claimants’ last known address, and upon defendant by first class mail.

3. Prosecution of this claim is stayed for 90 days from the filing of this Decision and Order in order to permit claimants time to retain new counsel. Claimants shall have their new counsel file a Notice of Appearance within said 90 days. If an appearance of counsel is not filed on behalf of claimants Ruth H. Sutton and D. James Sutton, individually, said claimants will be deemed to appear pro se and are reminded that they are required to inform the Chief Clerk’s office in Albany, in writing, of any change of address.

4. A telephone conference on this claim is scheduled for September 1, 2009, at

10:30 A.M. The Court will initiate the call.

May 15, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Order to Show Cause, signed by Hon. Judith A. Hard, on February 17, 2009, and

Affirmation of David M. Brickner, Esq., dated February 12, 2009;

2. Letter of Saul Aronson, Assistant Attorney General, dated March 2, 2009;

3. Letter of Paul F. Cagino, Assistant Attorney General, dated March 4, 2009.