New York State Court of Claims

New York State Court of Claims
MOSBY v. STATE OF NEW YORK, # 2019-040-092, Claim No. 121105, Motion No. M-94322

Synopsis

Motion to withdraw as counsel granted.

Case information

UID: 2019-040-092
Claimant(s): MALIK AZ'RAEL MOSBY
Claimant short name: MOSBY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 121105
Motion number(s): M-94322
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: THE LAMA LAW FIRM, LLP
By: Luciano L. Lama, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Thomas Trace, Esq., Associate Attorney
Third-party defendant's attorney:
Signature date: September 12, 2019
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant's counsel, by Order to Show Cause, has moved, pursuant to CPLR 321(b)(2), for an order granting him leave to withdraw. Counsel has submitted proof of service that Claimant and the Attorney General have been served with copies of the Motion papers. As directed by the Court, Claimant was served by certified mail, return receipt requested, and first-class mail, at his last-known address, and the State was served by first-class mail. The Court has not received any opposition to this Motion to withdraw.

This is an action to recover damages for injuries sustained by Claimant as a result of alleged negligent supervision of inmates at Gouverneur Correctional Facility, and a resultant assault upon Claimant on April 16, 2011. The Claim was filed in the Office of the Clerk of the Court on March 29, 2012 by Claimant, then appearing pro se. The Affidavit of Service attached to the Claim states that the Claim was mailed to the Office of the Attorney General on March 26, 2012. Issue was joined when the Answer was filed with the Clerk of the Court on April 6, 2012. Claimant's counsel filed a Notice of Appearance in the Office of the Clerk of the Court on October 5, 2015. Discovery has been completed (Affirmation of Luciano L. Lama, Esq. [hereinafter "Lama Affirmation"], 4). By Order dated January 29, 2019, the Court scheduled the trial of this matter for October 10, 2019, in Utica, New York.

In Mr. Lama's affirmation submitted in support of the Motion, counsel asserts that, recently, differences have developed between Claimant and counsel that make it impossible for counsel to continue representing Claimant in this matter (Lama Affirmation, 5, 7, 8, 9). In addition, counsel provided the Court with an In Camera Affirmation, in which he particularizes his reasons for seeking withdrawal. In view of legal and ethical constraints imposed upon him, counsel cannot particularize the reasons in his Motion papers.

Claimant has raised no objection to the withdrawal. Based upon the record, the Court can see no significant resultant prejudice to Claimant if counsel's request is granted, and counsel has demonstrated sufficient cause to be permitted to withdraw (Solomon v Solomon, 172 AD2d 1081 [4th Dept 1991]).

The Motion is granted and the Chief Clerk is directed to amend her records by replacing Movant's name as attorney of record and, for now, indicating that Claimant will act on his own behalf. The trial scheduled to commence on October 10, 2019 is adjourned without date. Claimant is to advise the Court by March 15, 2020 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. The Lama Law Firm, LLP is directed to provide any and all records relating to this action to Claimant, if Claimant should contact counsel, or to new counsel for Claimant, upon request. Thus, if he is still interested in prosecuting his Claim, Claimant will have time to retain new counsel, and Defendant will not be substantially prejudiced by the delay in trial attributable to counsel's withdrawal, as the Court has adjourned the trial date of this matter.

Therefore, based upon the foregoing, it is:

ORDERED that Claimant's counsel's Motion for leave to withdraw is granted; and it is further

ORDERED that Claimant's counsel serve, by first-class mail and certified mail, return receipt requested, a copy of this Decision and Order upon Claimant, at the same last-known address as was the Order to Show Cause, and also serve the same upon the Attorney General by first-class mail. Thereafter, Claimant's counsel is to file the affidavits of service in regard to the foregoing with the Clerk of the Court.

September 12, 2019

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were considered on Claimant's attorney's Motion for an order permitting withdrawal:

Papers Numbered

Order to Show Cause, Affirmation and

Affirmations of Service 1

Filed Papers: Claim, Answer