New York State Court of Claims

New York State Court of Claims

KAVAZANJIAN v. THE STATE OF NEW YORK, #2009-040-056, Claim No. 112902, Motion No. M-76638


Motion pursuant to CPLR § 321(b)(2) to be relieved as counsel 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:
Robert W. Nishman, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Cheryl Rameau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 9, 2009

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 him leave to withdraw. Counsel has submitted proof of service that Claimant and the Attorney General have been served with copies of the motion papers. As directed by the Court, Claimant was served by regular mail and certified mail, return receipt requested, and the State was served by regular mail. However, the certified mail letter was returned to counsel as “Unable to Forward.” The Court has not received any opposition to this motion to withdraw.

In his affirmation submitted in support of the motion, counsel asserts that he has written to Claimant on two occasions since December 22, 2007 and that both letters have been returned by the Postal Service with the notation, “Return to Sender ... Unable to Forward” (see Exs. C & D attached to Affirmation of Robert W. Nishman, Esq.). Counsel states that he has called Claimant on the telephone at the number provided by Claimant and was advised that the number is no longer in service. Mr. Nishman further asserts that he has performed an internet search of Claimant’s name using the search engine “Google” and was not able to locate Claimant. Counsel also states he searched the New York State prison registry and that Claimant is not incarcerated.

As Claimant has failed to keep his counsel apprised of his whereabouts, it appears he is no longer interested in prosecuting this action. 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]).

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 his own behalf. Claimant is to advise the Court by September 15, 2009 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. Mr. Nishman is directed to turn over any and all records relating to this action to Claimant, if Claimant should contact him, or to new counsel for Claimant, upon request. This Claim was filed approximately three years ago and, based upon a review of the Court’s file, some discovery has taken place but a Note of Issue and Certificate of Readiness has not yet been filed. Thus, if he is still interested in prosecuting his 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 first-class mail and certified mail, return receipt requested, a copy of this Decision and Order to Claimant, at his 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 in regard to the foregoing with the Clerk of the Court.

July 9, 2009
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, Affirmation
and Affidavit of Service Attached 1

Reply Affirmation of Assistant Attorney
General Cheryl Rameau 2

Filed Papers: Claim, Answer