Attorney's motion to be relieved as counsel for the claimant in a medical malpractice case was denied. Motion was unsupported by medical evidence and was not made until the eve of trial.
|Claimant short name:||ROBINSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Franzblau Dratch, P.C.
By: Brian M. Dratch, Esq.
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Belinda J. Wagner, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 17, 2017|
|See also (multicaptioned case)|
Counsel for the claimant, Franzblau Dratch, P.C. (Dratch), moves pursuant to CPLR 321 (b) (2) to be relieved as counsel for the claimant.
The instant claim, filed May 29, 2015, alleges damages arising from delayed medical treatment during the months of April and May 2013 while claimant was incarcerated at Shawangunk Correctional Facility. Specifically, claimant alleges the defendant failed to timely refer him for emergency neurological consultation and decompression and fusion surgery, which allegedly caused him "to suffer permanent significant decreased function of his muscles resulting in permanent absence of movement [of] his legs" (claimant's Exhibit A, ¶ 4). Claimant alleges that "emergency surgery on his spinal cord [was performed] on May 26, 2013" (id. at ¶ 2).(1) Dratch's motion is supported by an affirmation of Brian M. Dratch, Esq., a copy of the claim, and defendant's answer thereto. Mr. Dratch's affirmation is one page long, caption included, and provides the following explanation for his firm's request to be relieved as claimant's counsel: "Without piercing the attorney client privilege, my firm can no longer adequately represent Claimant due to the fact that Claimant's [sic] no longer has an expert that will support the merits of the claim" (Dratch Affirmation, at ¶ 4).
The motion is opposed by both claimant and defendant.
In order to terminate the attorney-client relationship " 'good and sufficient cause' " must be found to exist (Lake v M.P.C. Trucking, 279 AD2d 813 [3d Dept 2001], quoting Matter of Dunn, 205 NY 398 ; see 22 NYCRR § 1200.0 [rule 1.16 [c]). Good and sufficient cause exists, inter alia, where "the client insists upon presenting a claim . . . that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law" (22 NYCRR 1200.0 [rule 1.16 [c] ]). The determination as to whether or not good cause exists rests within the discretion of the Court (McCord v State of New York, 63 AD3d 1120 [2d Dept 2009]; George v George, 217 AD2d 913 [4th Dept 1995]). The right to withdraw as counsel for a client is not absolute and, absent a "sound reason", permissive withdrawal is properly denied (Matter of Jamieko A., 193 AD2d 409, 410 [1st Dept 1993]). Where lack of merit is the purported basis for withdrawal, conclusory assertions by claimant's counsel are insufficient to demonstrate good cause (Willis v Holder, 43 AD3d 1441 [4th Dept 2007]; Rann v Lerner, 160 AD2d 922 [2d Dept 1990]). Thus, a motion to be relieved as counsel for a claimant in the prosecution of a claim for either medical malpractice or medical negligence must be supported by medical evidence demonstrating that the claim lacks merit. Such proof may be submitted to the Court in camera and served on the claimant, but not upon the defendant so as not to prejudice the claimant's case (see CPLR 321 [b] ; LeMin v Central Suffolk Hosp., 169 AD2d 821 [2d Dept 1991]). Here, Dratch submitted no medical evidence whatsoever. Absent a physician's affidavit or any other medical evidence supporting Dratch's assertion that the case lacks merit, its motion to withdraw must be denied (cf. Cohen v Tzimas, 135 Misc 2d 335 [N.Y Co. 1987] [two physicians' reports were attached to counsel's affidavit in support of motion to withdraw]).
The instant claim, filed more than 2-1/2 years ago, was supported by a certificate of merit in which Mr. Dratch states "I have reviewed the facts of the case and have consulted with at least one physician . . . and I have concluded . . . there is a reasonable basis for the commencement of this action." While Mr. Dratch now indicates otherwise, he fails to explain the circumstances underlying his reassessment (cf. Diaz v New York Comprehensive Cardiology, PLLC, 43 Misc 3d 759 [Sup Ct, Kings County, 2014]).
This matter was scheduled for trial on September 7, 2017 and it was not until the pre-trial conference on August 23, 2017 that Mr. Dratch informed the Court and the defendant of his intention to seek permission to withdraw. Inasmuch as this claim has been pending for more than two years and the note of issue and certificate of readiness for trial have been filed, it cannot be concluded that "withdrawal can be accomplished without material adverse effect on the interests of the client" (22 NYCRR 1200.0 rule 1.16 [c] ).
Accordingly, movant's application to be relieved as counsel is denied. A conference for the purpose of scheduling this matter for trial will be held on Thursday, December 21, 2017 at 9:30 a.m.
November 17, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. While claimant alleges a notice of intention to file a claim was served, it does not appear the claim was served on the Attorney General until May 27, 2015, more than two years after the claim accrued (see Court of Claims Act § 10 (3).