New York State Court of Claims

New York State Court of Claims
CASTELLANO v. THE STATE OF NEW YORK, # 2010-016-065, Claim No. 117035, Motion No. M-78754

Synopsis

Case information

UID: 2010-016-065
Claimant(s): DEON CASTELLANO as ADMINISTRATOR OF THE ESTATE OF NIYA CASTELLANO, deceased and DEON CASTELLANO, individually
Claimant short name: CASTELLANO
Footnote (claimant name) : The caption has been amended to reflect that at a conference on April 29, 2010, counsel for claimant advised that Deon Castellano had been appointed as administrator of the estate of Niya Castellano.
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): 117035
Motion number(s): M-78754
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Mark M. Basichas & Associates, PC
By: Aleksey Feygin, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
No Appearance
Third-party defendant's attorney:
Signature date: November 3, 2010
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

By Order to Show Cause, the firm of Mark M. Basichas & Associates, P.C. moves for permission to be relieved as counsel to claimant Deon Castellano, as administrator of the estate of Niya Castellano, and individually. The claim alleges medical malpractice resulting in wrongful death in connection with Niya Castellano's treatment at Downstate Medical Center.

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 Natl. 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, counsel has submitted an affidavit stating that claimant was served with the Order to Show Cause, an affirmation in support, and a supplemental affirmation in support; 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(3) , Patti, J.). Having reviewed counsel's affirmations in support, I find that there is good and sufficient cause for withdrawal.

Accordingly, having reviewed the submissions(4) , IT IS ORDERED that motion no. M-78754 be granted to the extent that:

1. Mark M. Basichas & Associates, P.C. is permitted to withdraw as attorney of record for claimant, subject to 2, below. Within thirty (30) days of the date of filing of this Decision and Order, Mark M. Basichas & Associates, P.C. shall serve a file-stamped copy of this Decision and Order on claimant Deon Castellano by certified mail, return receipt requested and by regular mail, and on defendant by regular mail;

2. Mark M. Basichas & Associates, P.C. shall file proofs of service on claimant Deon Castellano and on defendant with the Clerk of the Court. Upon the Clerk's receipt of said proofs of service, Mark M. Basichas & Associates, P.C. shall be relieved from representation of claimant;

3. Claimant Deon Castellano 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 (New York State Court of Claims, Justice Building, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (New York State Department of Law, 120 Broadway, New York, NY 10271) in writing of the intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney;

5. Prosecution of this claim is stayed pending the conclusion of the foregoing ninety (90) day period; 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.

November 3, 2010

New York, New York

Alan C. Marin

Judge of the Court of Claims


3. This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us.

4. The Court reviewed claimant's counsel's affirmation in support of this motion with exhibit A, and counsel's supplemental affirmation in support. Neither claimant Deon Castellano nor counsel for defendant responded to the Order to Show Cause.