Opinion
# 2017-040-111 Claim No. 126881 Motion No. M-90619
08-14-2017
PHILLIP INEGBENEBO v. THE STATE OF NEW YORK
SIVIN & MILLER, LLP By: Edward Sivin, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
Counsel's Motion for leave to withdraw as Claimant's counsel granted.
Case information
| UID: | 2017-040-111 |
| Claimant(s): | PHILLIP INEGBENEBO |
| Claimant short name: | INEGBENEBO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126881 |
| Motion number(s): | M-90619 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | SIVIN & MILLER, LLP By: Edward Sivin, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | August 14, 2017 |
| 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 two addresses, and the State was served by first-class mail. The Court has not received any opposition to this Motion to withdraw.
In Edward Sivin's affirmation submitted in support of the Motion, counsel asserts that, shortly after joinder of issue, irreconcilable differences developed between Claimant and his counsel as to how to proceed with the prosecution of this matter (Sivin Affirmation, ¶ 4). In view of legal and ethical constraints imposed upon him, counsel cannot particularize the reasons in his Motion papers.
In his affirmation, counsel further asserts that, over the past year, he has been unable to communicate with Claimant. He has sent letters to Claimant on three occasions since January 13, 2016 and two of the letters have been returned by the Postal Service with the notation, "Return to Sender … Unable to Forward," and the letter postmarked March 31, 2017 was returned with the notation, "Forward Time Exp Rtn to Send" (see Ex. 3 attached to Sivin Affirmation). Counsel states that he has called Claimant on the telephone at the number provided by Claimant and has left voice mail messages that have not been returned (Sivin Affirmation, ¶ 5). Mr. Sivin further asserts that he has sent electronic mail messages to Claimant on three occasions, to an address he had previously used to correspond with Claimant, and has received no response (id.).
Claimant has raised no objection to the withdrawal. As Claimant has failed to keep his counsel apprised of his whereabouts, it appears he is no longer interested in prosecuting this action. 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. Claimant is to advise the Court by February 1, 2018 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. The law firm of Sivin & Miller, 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. This Claim was filed approximately one year and nine months ago, and it does not appear any discovery has yet taken place. 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.
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 two last-known addresses 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.
August 14, 2017
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 Exhibits attached, and Affidavit of Service 1 Letter from Defense Counsel dated June 21, 2017 2 Filed Papers: Claim, Answer