New York State Court of Claims

New York State Court of Claims
A.S. v. THE STATE OF NEW YORK, # 2018-038-571, Claim No. 126919, Motion No. M-91968

Synopsis

Case information

UID: 2018-038-571
Claimant(s): A.S.
Claimant short name: A.S.
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126919
Motion number(s): M-91968
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: No Appearance
Defendant's attorney: BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: No Appearance
Third-party defendant's attorney:
Signature date: July 30, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This claim was filed on October 26, 2015 and alleges that claimant, an individual formerly incarcerated in state correctional facilities, was subjected to "sexual assault and battery, harassment, and retaliatory treatment for reporting [a] sexual assault and battery and filing a claim pursuant to the Prison Rape Elimination Act" (PREA) at Adirondack Correctional Facility (CF), Upstate CF and Bare Hill CF from August through October 2015 (Claim number 126919,  2, at pp.1-2). By Order to Show Cause, the Cherundolo Law Firm, PLLC, claimant's attorney of record, seeks to be relieved as counsel in this claim. Neither claimant nor defendant has submitted any papers on the motion.

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]).

In support of the application seeking to withdraw, counsel simply affirms that claimant was notified in correspondence dated February 5, 2018 that the Cherundolo Law Firm "would not be able to continue to represent him in the prosecution of this matter and advised him of his option to retain new counsel to proceed in this action" (Mendoza Affirmation, 4), a copy of which was subsequently supplied to the Court upon its request for in camera review. This letter does not, on its face, demonstrate good and sufficient cause for withdrawal of representation (see 22 NYCRR 1200.0, Rule 1.16 (c)(1)-(13)]), and counsel offers no additional facts or arguments why such cause exists. Thus, counsel has not borne its burden of demonstrating entitlement to the relief sought.

Accordingly, it is

ORDERED, that the application of the Cherundolo Law Firm, PLLC to withdraw as counsel in this claim is DENIED without prejudice to a subsequent motion that demonstrates good and sufficient cause to withdraw.

July 30, 2018

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Claim number 126919, filed October 26, 2015;

(2) Affirmation of Cristen M. Mendoza, Esq., dated February 23, 2018;

(3) Order to Show Cause, dated March 5, 2018;

(4) "So Ordered" Correspondence of Hon. W. Brooks DeBow, dated March 5, 2018;

(5) Correspondence of Cristen M. Mendoza, Esq., dated March 15, 2018, with

Attachments (February 5, 2018 Cherundolo Law Firm Correspondence; Affidavits

of Service of Cristen M. Mendoza, sworn to March 9, 2018);

(6) Correspondence of Hon. W. Brooks DeBow, dated May 10, 2018;

(7) Correspondence of Cristen M. Mendoza, Esq., dated May 17, 2018, with

Attachment (USPS Tracking Printout);

(8) Correspondence of Hon. W. Brooks DeBow, dated May 23, 2018;

(9) Correspondence of Cristen M. Mendoza, Esq., dated June 5, 2018, with Attachments

(Affidavit of Service of Cristen M. Mendoza, sworn to May 29, 2018;

Certified Mail Receipt; USPS Tracking Printout);

(10) Decision and Order in A.S. v State of New York, UID No. 2017-038-546,

(Ct Cl, DeBow, J., June 29, 2017).