New York State Court of Claims

New York State Court of Claims
FILLYAW v. STATE OF NEW YORK, # 2009-040-097, Claim No. 114070, Motion No. M-77346

Synopsis

Counsel's motion to withdraw pursuant to CPLR 321(b)(2) granted.

Case information

UID: 2009-040-097
Claimant(s): MATTHEW FILLYAW
Claimant short name: FILLYAW
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114070
Motion number(s): M-77346
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: Melvin T. Higgins, Esq.
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Michael C. Rizzo, Esq., AAG
Third-party defendant's attorney:
Signature date: December 18, 2009
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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. The Court has not received any opposition to this motion to withdraw.

In Melvin T. Higgins' affirmation submitted in support of the motion, counsel advised the Court of his reasons for seeking leave to withdraw. In reading the papers submitted by counsel it is abundantly clear to the Court that counsel and Claimant disagree regarding the strengths and weaknesses of the case. Counsel also states that, since May 21, 2009, he has spoken to Claimant, by telephone, on several occasions and was informed that the Claim "was being reviewed by an attorney in New York City and/or other attorneys" (Higgins Affirmation, unnumbered p. 2). Mr. Higgins further avers that, with the exception of a request to send a copy of Claimant's Notice of Intention to File a Claim to Robert Isseks, Esq., in August 2009, Claimant has failed to communicate with Mr. Higgins during the last several months, despite numerous requests to do so.

Claimant has raised no objection to the withdrawal. 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]).

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 March 15, 2010 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. Mr. Higgins is directed to turn over any and all records relating to this action to Claimant, or to new counsel for Claimant, upon request. This Claim was filed August13, 2007, and, based upon a review of the Court's file, some discovery has taken place but a Note of Issue and Certificate of Readiness have 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.

December 18, 2009

Albany, New York

CHRISTOPHER J. McCARTHY

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 Affidavits of Service Attached 1

Filed Papers: Claim, Answer