Opinion
# 2014-015-488 Claim No. 122240 Motion No. M-84585
04-16-2014
ROBERT S. DOUGLAS v. THE STATE OF NEW YORK
Law Offices of Eugene C. TenneyBy: Nathan C. Doctor, Esquire Honorable Eric T. Schneiderman, Attorney GeneralBy: Belinda A. Wagner, EsquireAssistant Attorney General
Synopsis
Attorney's motion to be relieved as counsel was denied where only reason proffered wasclaimant's transfer from one prison to another.
Case information
| UID: | 2014-015-488 |
| Claimant(s): | ROBERT S. DOUGLAS |
| Claimant short name: | DOUGLAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the onlyproperly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122240 |
| Motion number(s): | M-84585 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Eugene C. TenneyBy: Nathan C. Doctor, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney GeneralBy: Belinda A. Wagner, EsquireAssistant Attorney General |
| Third-party defendant'sattorney: | |
| Signature date: | April 16, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Claimant's counsel, Law Offices of Eugene C. Tenney, PLLC, moves by order to show causeto withdraw as counsel for the claimant pursuant to CPLR 321 (b) (2). Claimant opposes the motionand defendant requests an extension of the date for filing the note of issue in the event the motionis granted.
Claimant allegedly contracted methicillin-resistant Staphylococcus aureus (MRSA) whileworking as an inmate-porter in the infirmary of Adirondack Correctional Facility on January 19,2011. A notice of intention to file a claim was allegedly served on or about April 12, 2011 and theLaw Offices of Eugene C. Tenney, PLLC, filed the instant claim on claimant's behalf on January 14,2013. Claimant alleges his injuries and hospitalization were caused by the negligence of thedefendant in failing to maintain the prison infirmary with due regard for the health and safety of theclaimant, in that procedures necessary to prevent the spread of MRSA were not implemented.
In support of its application to withdraw as counsel for the claimant, Nathan C. Doctor, Esq.,avers that this case was referred to his office after claimant had been released from AdirondackCorrectional Facility. Movant thereafter learned that the claimant had again been incarcerated andMr. Doctor met with him at Collins Correctional Facility in order to secure the information necessaryto commence the action. Mr. Doctor indicates that the action was commenced "in order to protectthe statute of limitations and to provide an opportunity for our office to determine whether the claimwas one which we could proceed with" (affidavit of Nathan C. Doctor, ¶ 7). Mr. Doctor statesfurther that his office has now determined that it is unable to proceed with the claim becauseclaimant has been transferred twice since their initial meeting at Collins Correctional Facility andis now located at Marcy Correctional Facility, "making it rather difficult to communicate with theclaimant" (id. at ¶ 9).
In order to terminate the attorney-client relationship " 'good and sufficient cause' " must befound to exist (Lake v M.P.C. Trucking, Inc., 279 AD2d 813 [3d Dept 2001], quoting Matter ofDunn, 205 NY 398 [1912]). Good and sufficient cause exists, inter alia, where the client " 'rendersthe representation unreasonably difficult for the lawyer to carry out employment effectively' "(Ferdico v Zweig, 82 AD3d 1151, 1153 [2d Dept 2011], quoting 22 NYCRR 1200.0] rule 1.16 [c][7]; see also McCormack v Kamalian, 10 AD3d 679 [2d Dept 2004]; Ashker v International Bus.Machs. Corp., 201 AD2d 765 [3d Dept 1994]).
The determination whether or not good cause exists rests within the discretion of the Court(McCord v State of New York, 63 AD3d 1120 [2d Dept 2009]; George v George, 217 AD2d 913 [4thDept 1995]). The right to withdraw as counsel for a client is not absolute, however, and absent a"sound reason" permissive withdrawal is properly denied (Matter of Jamieko A., 193 AD2d 409, 410[1st Dept 1993]). Contrary to Mr. Doctor's assertions, the Court does not agree that claimant'stransfer from Collins Correctional Facility to Marcy Correctional Facility renders it unreasonablydifficult for his firm to carry out its employment effectively. Aside from the fact that MarcyCorrectional Facility is located further from movant's office than Collins Correctional Facility, nosound basis for withdrawal as counsel for the claimant has been advanced. Moreover, the distancefrom movant's office to Marcy Correctional Facility is not so great as to render continuedrepresentation of the claimant unreasonably difficult. Given the frequency with which inmates aretransferred between prisons within the State, movant could have had no reasonable expectation whenit commenced this action that the claimant would remain in Collins Correctional Facility for theduration of this lawsuit. Lastly, this claim has been pending for more than a year and the note ofissue and certificate of readiness were due to be filed and served on or before March 26, 2014. Atthis juncture in the litigation, therefore, it cannot be concluded that "withdrawal can be accomplishedwithout material adverse effect on the interests of the client" (22 NYCRR 1200.0] rule 1.16 [c] [1]). Accordingly, movant's application to be relieved as counsel is denied.
April 16, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Order to show cause dated January 27, 2014;
Affidavit of Nathan C. Doctor sworn to January 23, 2014;
Affirmation of Belinda A. Wagner dated February 10, 2014;
Reply affidavit of Nathan C. Doctor sworn to February 14, 2014;
Letter from Robert Douglas dated March 12, 2014.