Claimant's attorney's motion for permission to withdraw as counsel is granted.
|Claimant short name:||CRUSE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Michael J. Collesano, LLM, PC
By: Michael J. Collesano, Esq.
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: G. Lawrence Dillon, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 9, 2018|
|See also (multicaptioned case)|
Claimant filed the instant claim in this action on March 25, 2015, alleging causes of action for negligent medical treatment and medical malpractice stemming from medical treatment claimant received from employees of defendant while he was incarcerated at Gouverneur Correctional Facility. By way of an Order to Show Cause dated January 18, 2018, Michael J. Collesano, Esq. sought an order granting leave to be relieved as counsel for claimant. Thereafter, the Assistant Attorney General submitted a letter expressing no opposition to Mr. Collesano's request to be relieved as counsel for claimant. 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] ). 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 personal service or certified mail, return receipt requested, on or before February 1, 2018, and upon counsel for defendant via regular mail on or before February 1, 2018. Counsel for defendant was properly served by regular mail on January 31, 2018. By telephone conference with the Court on June 7, 2018, counsel for claimant advised that service upon claimant had not yet been effected. Thereafter, the Court issued an Order directing that the Order to Show Cause, together with the papers upon which it was granted, be served upon claimant via personal service or certified mail, return receipt requested no later than June 29, 2018. Counsel for claimant thereafter, filed an Affidavit of Service, in which Mandy Collesano averred that she served claimant via certified mail, return receipt requested on June 22, 2018. A true and accurate copy of the certified mail receipt showing service upon claimant is attached to the Affidavit of Service. 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 ; Lake v M.P.C. Trucking Inc., 279 AD2d 813, 814 [3d Dept. 2001]). Good and sufficient cause has been found where there exists "irreconcilable differences between the attorney and the client with respect to the proper course to be pursued in litigation" (Winters v Rise Steel Erection Corp., 231 AD2d 626 [2d Dept. 1996] [citations omitted]). 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 Michael J. Collesano, 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, Michael J. Collesano, 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 his file, by certified mail, return receipt requested, or by personal service, at his 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 sixty (60) days from the filing of this Decision and Order in order to permit claimant time to retain new counsel, if he so chooses. If claimant retains new counsel, he shall have said counsel file a Notice of Appearance within said sixty (60) 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 he 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.
October 9, 2018
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Order to Show Cause, signed by Hon. Judith A. Hard, J.C.C., on January 18, 2018; and the Affirmation of Michael J. Collesano, Esq., affirmed on January 3, 2018.
2. Letter in Response to Order to Show Cause, signed by G. Lawrence Dillon, AAG, on January 3, 2018.
3. Affidavit of Service, sworn to by Mandy Collesano on January 31, 2018, with Attachments.
3. Affidavit of Service, sworn to by Mandy Collesano on June 29, 2018, with Attachments.