New York State Court of Claims

New York State Court of Claims
SIMPSON v. THE STATE OF NEW YORK, # 2017-032-008, Claim No. 128136, Motion No. M-89358

Synopsis

Claimant's attorney's motion for permission to withdraw as counsel is granted.

Case information

UID: 2017-032-008
Claimant(s): LASHAWN SIMPSON, as Administratrix of the Estate of SHAWN SIMPSON
Claimant short name: SIMPSON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended to reflect the only properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128136
Motion number(s): M-89358
Cross-motion number(s):
Judge: JUDITH A. HARD
Claimant's attorney: Russell S. Burman, Esq.
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Bridget E. Farrell, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: February 27, 2017
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant filed the instant claim on June 29, 2016 sounding in medical malpractice and medical negligence against defendants. By way of an Order to Show Cause dated October 12, 2016, Russell S. Burman, Esq., of counsel, sought an order granting leave to be relieved as counsel for claimant. The Assistant Attorney General thereafter submitted an Affidavit in Partial Opposition to claimant's motion, averring that a similar application by claimant's counsel was pending in a companion action before Supreme Court, Kings County, and that, if such application was denied, the State should be entitled to set forth its reasons for opposition to the application in this Court. On November 11, 2016, claimant's counsel submitted a Supplemental Reply Affirmation in which he averred that his motion to be relieved as counsel in the Supreme Court action was granted on November 4, 2016. As of the date of this Decision and Order, no response to counsel's application for withdrawal has been received from claimant.

As relevant here, "[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" (CPLR 321 [b] [2]). Notably, "the Legislature declined to specifically delineate the manner in which service of the required notice was to be effected. Instead, the Legislature determined that the manner of service was best left to the court, whose discretion was to be exercised on a case-by-case basis" (Wong v Wong, 213 AD2d 399, 400 [2d Dept 1995]).

Here, the Court directed that the Order to Show Cause be served upon claimant via certified mail, return receipt requested, or by personal service on or before October 25, 2016, and upon counsel for defendant via certified mail, return receipt requested, on or before October 14, 2016. Counsel thereafter filed an affidavit of service, in which Sanayia Harvey averred that she, as a nonparty to the action, personally served claimant with a copy of the Order to Show Cause on October 14, 2016. Counsel also filed an affidavit in which John Sobolewski, a nonparty to the action, averred that he served a copy of the Order to Show Cause upon the Attorney General via certified mail, return receipt requested, on October 13, 2016. In light of the foregoing, the Court is satisfied that there has been an effective delivery of the Order to Show Cause upon claimant, and that counsel's efforts have satisfied the notice aspect of an application to be relieved (see Wong v Wong, 213 AD2d at 400; see also Palmieri v Biggiani, 108 AD3d 604, 609 [2d Dept 2013]).            

With respect to the merits of the application to be relieved, counsel must show good cause to terminate the attorney-client relationship (see Matter of Cooperman, 83 NY2d 465, 468 [1994]; Lake v M.P.C. Trucking Inc., 279 AD2d 813, 814 [3d Dept 2001]). "Good and sufficient cause has been found to exist when there are 'irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in [the] litigation'" (Lake v M.P.C. Trucking Inc., 279 AD2d at 814, quoting Winters v Rise Steel Erection Corp., 231 AD2d 626 [2d Dept. 1996]). Pursuant to Rule 1.16 (c) (7) of the Rules of Professional Conduct, an attorney's withdrawal from representation is permissible where a client "fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively." Upon review of the papers submitted by claimant's counsel, this Court finds that good and sufficient cause exists for termination of the attorney-client relationship herein.

NOW, THEREFORE, based upon the foregoing, it is hereby

ORDERED, that upon compliance with the following conditions, movant's application seeking permission for Russell S. Burman, Esq., to withdraw as counsel for claimant is granted pursuant to CPLR 321 (b) (2); and it is further

ORDERED, that within twenty (20) days of the filing of this Decision and Order, Russell S. Burman, Esq., shall serve a copy of this Decision and Order with notice of entry on claimant by first class mail and certified mail, return receipt requested, or by personal service, at claimant's last known address, and on counsel for defendant by first class mail, and shall file an affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED, that within twenty (20) days of the filing of this Decision and Order, withdrawing counsel shall provide claimant with a copy of her file, by certified mail, return receipt requested, or by personal service, at her last known address, and shall file an affidavit of compliance with the Clerk of the Court. Upon the Clerk's receipt of the affidavit(s) of service and affidavit of compliance, counsel shall be relieved from representation of claimant; and it is further

           ORDERED, that all proceedings herein are stayed for ninety (90) days from the filing of this Decision and Order in order to permit claimant time to retain new counsel, if she so chooses. If claimant retains new counsel, she shall have said counsel file a Notice of Appearance within said ninety (90) days. If an appearance of counsel is not filed on behalf of claimant, claimant will be deemed to appear pro se (without counsel) and is reminded that she is required to inform the Clerk of the Court (New York State Court of Claims, P.O. Box 7344, Capitol Station, Albany, New York 12224), in writing, of any change of address.

February 27, 2017

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Order to Show Cause, signed by Hon. Judith A. Hard, J.C.C., on October 12, 2016; and the Affirmation of Russell S. Burman, Esq., affirmed on September 8, 2016.

2. Affirmation in Partial Opposition to Motion, affirmed by Bridget E. Farrell, AAG, on October 21, 2016.

2. Reply Affirmation, affirmed by Russell S. Burman, Esq., on October 21, 2016, with attachments.

3. Supplemental Reply Affirmation, affirmed by Russell S. Burman, Esq., on November 10, 2016, with attachments.