New York State Court of Claims

New York State Court of Claims

BOSS v. STATE OF NEW YORK, #2009-039-117, Claim No. 113737, Motion No. M-76018


Synopsis


The Court finds that good and sufficient cause exists for termination of the attorney-client relationship. In addition to his own supporting affirmation, wherein counsel attests to several unsuccessful attempts to contact his client and attaches several letters sent by him in an effort to contact his client, counsel also offers a copy of a letter from claimant wherein his client consents to counsel’s request to withdraw.

Case Information

UID:
2009-039-117
Claimant(s):
JERMAINE BOSS
Claimant short name:
BOSS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113737
Motion number(s):
M-76018
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Martin E. Fiel, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 6, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By order to show cause signed December 1, 2008, Martin E. Fiel, Esq., attorney of record for claimant, seeks to be relieved as counsel on the grounds that claimant has failed to communicate or cooperate with him thereby rendering the continued prosecution of this matter stagnant for a period of time in excess of one year. Defendant does not offer 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, 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 affirmation, as well as copies of several letters that he sent to claimant over a period of approximately 11 months. In his affirmation, counsel asserts that, to no avail, he has sent several letters to claimant and left him several telephone messages in an effort to obtain claimant’s cooperation in connection with this matter, and to provide him with information regarding the status of his claim. In the letters counsel attaches to his affirmation, he urges claimant to contact him and provides additional information related to the status of the claim. Counsel also provides the Court with a copy of a letter from claimant dated December 22, 2008 wherein it appears that claimant is consenting to counsel’s request to withdraw. Moreover, counsel’s affirmation of service reveals that on December 10, 2008 copies of the order to show cause and supporting papers were served upon defendant and claimant by certified mail, return receipt requested.

Accordingly, it is hereby

ORDERED that M-76018 is granted and that Martin E. Fiel, Esq. is permitted to withdraw as attorney of record for claimant; 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 claimant the opportunity to retain new counsel, if he has not done so already, and file a notice of appearance with the Chief Clerk of the Court of Claims, or to notify the Chief Clerk of the Court of Claims and defendant in writing of his intention to proceed pro se (without counsel); and it is further

ORDERED
that, in the event claimant fails to appear pro se or by new counsel within the sixty day period, the claim herein will be dismissed for claimant’s default pursuant to 22 NYCRR 206.15, and no further order of this Court will be required; and it is further

ORDERED that, within fourteen days from the filing date hereof, counsel is directed to file with the Chief Clerk of the Court of Claims proof of service of this Decision and Order and the complete file upon claimant by certified mail, return receipt requested, and proof of service of this Decision and Order upon defendant by ordinary mail.


March 6, 2009
Albany, New York

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


Papers Considered
:
  1. Order to Show Cause dated December 1, 2008;
  2. Affirmation in Support of Order to Show Cause dated November 13, 2008 with exhibits; and
  3. Affirmation of Service of Order to Show Cause Upon Claimant and Defendant dated December 10, 2008; and
  4. Correspondence from Martin E. Fiel, Esq., dated December 29, 2008, with copies of letter and envelope from Jermaine Boss dated December 22, 2008.