Opinion
# 2012-038-570 Claim No. 118582 Motion No. M-81936
10-04-2012
ANTHONY WILLIAMS v. STATE OF NEW YORK
Synopsis Case information
UID: 2012-038-570 Claimant(s): ANTHONY WILLIAMS Claimant short name: WILLIAMS Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118582 Motion number(s): M-81936 Cross-motion number(s): Judge: W. BROOKS DeBOW FRANZBLAU DRATCH, P.C. (for movant) Claimant's attorney: By: Elizabeth Delahunty, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: OF THE STATE OF NEW YORK By: Belinda A. Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: October 4, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim was filed on June 25, 2010, seeking compensation for injuries sustained as a result of defendant's alleged medical negligence while claimant was an inmate in the custody of the State of New York. By Order to Show Cause returnable on August 15, 2012, the law firm of Franzblau Dratch, P.C., claimant's attorney of record, sought to be relieved as counsel on the ground that claimant had failed to participate and assist counsel in the prosecution of this claim. By correspondence dated July 30, 2012, counsel advised the Court that she was unable to locate claimant for service of the Order to Show Cause, and counsel requested a Court conference. The Court notes that a prior application by counsel to be relieved was denied for failure of service (see Williams v State of New York, UID No. 2012-038-525 [unpublished] [Ct Cl, DeBow, J., filed May 17, 2012]). Defendant states that it does not object to counsel's application to be relieved as counsel (see Wagner Affirmation, ¶ 2).
On August 17, 2012, a telephone conference call was conducted with claimant's counsel, Elizabeth Delahunty, Esq., Assistant Attorney General Belinda Wagner, and Nancy Schulman, Principal Law Clerk to the undersigned (see generally Correspondence from Chambers, dated August 17, 2012). Ms. Delahunty related the efforts and difficulties that had been experienced by counsel in locating claimant, and it was discussed that the most likely way to contact claimant was through his parole officer. The return date of the Order to Show Cause was adjourned to September 19, 2012, and Ms. Delahunty was directed to file and serve an affidavit or affirmation with exhibits in support of the application to be relieved as counsel, setting forth in particular detail counsel's efforts to locate and serve claimant. Ms. Delahunty's affirmation details counsel's efforts to contact claimant, his failure to respond to correspondence that he did receive, and counsel's inability to locate and/or serve claimant with documents on multiple occasions. The affirmation is supported by exhibits, and an affirmation of service of the Affirmation upon Officer Hodson, claimant's parole officer.
CPLR 321 (b) (2) provides, inter alia, 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 [and] to the attorneys of all other parties in the action. . ." An attorney requesting to withdraw from representation must demonstrate " 'a good and sufficient cause . . . upon reasonable notice' " (Lake v M.P.C. Trucking, 279 AD2d 813, 814 [3d Dept 2001], quoting Matter of Dunn, 205 NY 398, 403 [1912]; see also Rules of Professional Conduct [22 NYCRR 1200.0, Rule 1.16 (c)]). Whether good and sufficient cause exists to relieve counsel is a matter within the Court's discretion (see Hunkins v Lake Placid Vacation Corp., 120 AD2d 199, 201 [3d Dept 1986]).
Counsel's affirmation demonstrates that counsel has made diligent efforts to contact claimant and to serve him with papers related to the claim and to counsel's request to be relieved as counsel, and that claimant has failed to cooperate with counsel. Of particular note is counsel's assertion that claimant did, in fact, receive correspondence pertaining to the scheduling and rescheduling of his deposition, and that he failed to appear on both occasions (see Delahunty Affirmation, ¶¶ 7-9), and that claimant gave his verbal consent to counsel's withdrawal as attorney of record but that counsel's efforts to obtain claimant's written stipulation thereto failed despite claimant's confirmed receipt of it (id. ¶¶ 10-13, Exhibits B and C). Resonating throughout counsel's affirmation is claimant's failure to keep counsel apprised of his current address or other contact information. Thus, counsel's application for permission to withdraw as counsel will be granted (see CPLR 321[b][2]; Rules of Professional Conduct, 22 NYCRR § 1200.0, Rule 1.16[c][7]). Accordingly, it is
ORDERED, that the law firm of Franzblau Dratch, P.C. is permitted to withdraw as attorney of record to claimant pursuant to CPLR 321 (b), and it is further
ORDERED, that movant shall serve a filed-stamped copy of this Order upon claimant by certified mail, return receipt requested to claimant's last known address, and by certified mail, return receipt requested and facsimile to claimant in care of his parole officer, and upon defendant by regular mail within ten days of movant's receipt of such Order, and it is further
ORDERED, that movant shall file an affidavit of such service with the Clerk of the Court, and upon receipt of such affidavit, movant shall be relieved from representation of claimant, and it is further
ORDERED, that within ninety (90) days of the filing of this Order, claimant may retain new counsel who shall immediately file a notice of appearance, or claimant shall, within ninety (90) days, notify chambers in writing of his intention to proceed pro se (without counsel) or to discontinue the claim, and it is further
ORDERED, that in the event claimant fails to appear pro se or by new counsel and fails to notify the Court in writing within the 90 day period that he intends to discontinue the claim, the claim will be deemed dismissed (see 22 NYCRR 206.15), and no further order of this Court will be required.
October 4, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 118582, filed June 25, 2010;
(2) Order, Williams v State of New York, UID No. 2012-038-525, Claim No. 118582, Motion No. M-81241, DeBow, J., (dated April 12, 2012, filed May 17, 2012);
(3) Order to Show Cause to be Relieved as Counsel, dated July 3, 2012;
(4) Affirmation of Belinda A. Wagner, AAG, in Response to Order to Show Cause, dated July 19, 2012;
(5) Correspondence of Elizabeth A. Delahunty, Esq., dated July 30, 2012;
(6) Affidavit of Service of Mark Eslo, sworn to July 17, 2012;
(7) Correspondence of Nancy Schulman, Principal Law Clerk, dated August 17, 2012;
(8) Affirmation of Elizabeth A. Delahunty, Esq., dated September 19, 2012, with Exhibits A-H;
(9) Affirmation of Service on September 19, 2012 of Elizabeth A. Delahunty, Esq.