Opinion
# 2018-040-075 Claim No. 127846 Motion No. M-92111
08-14-2018
EARL GILBERT v. THE STATE OF NEW YORK
GORDON LAW FIRM OF NEW YORK, LLP By: Ava M. Gordon, M.D., Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Counsel's request for leave to withdraw granted.
Case information
| UID: | 2018-040-075 |
| Claimant(s): | EARL GILBERT |
| Claimant short name: | GILBERT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127846 |
| Motion number(s): | M-92111 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GORDON LAW FIRM OF NEW YORK, LLP By: Ava M. Gordon, M.D., Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 14, 2018 |
| 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 her 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. Counsel provided a copy of the envelope that was mailed by certified mail, return receipt requested, to Claimant. The envelope was returned to counsel with a handwritten note that Mr. Gilbert does not live at that address. The Court has not received any opposition to this Motion to withdraw.
In Ava M. Gordon's Affirmation submitted in support of the Motion, counsel asserts that this is an action to recover damages for injuries sustained by Claimant as a result of alleged negligent supervision of inmates at Marcy Correctional Facility, and a resultant assault upon Claimant on January 26, 2015 (Affirmation of Ava M. Gordon, Esq. [hereinafter, "Gordon Affirmation"], ¶ 3).
Counsel states that the Claim was served upon Defendant on May 5, 2016 and filed with the office of the Clerk of the Court on April 26, 2016. Issue was joined when the Answer was filed with the Clerk of the Court on November 1, 2016. Subsequently, a Preliminary Conference Order was signed by Hon. Christopher J. McCarthy on December 20, 2016. Claimant and Defendant served document discovery in response to respective demands (Gordon Affirmation, ¶ 4, and Exs. A-D attached).
A deposition of Claimant was scheduled to be held on October 31, 2017. However, based upon information provided to Defense counsel, it appears that there is a warrant out for Claimant's arrest, and his counsel has not been able to locate him. Therefore, they are unable to proceed with Claimant's deposition. Ms. Gordon states that, in January 2018, she was contacted by Claimant, from an unknown number, and he did not provide his location. When Ms. Gordon spoke to the Claimant, she explained that his inability/unwillingness to appear for deposition would jeopardize his case. She also explained that her firm would not be able to further represent him in this matter, and would request to be relieved as his counsel (id., ¶ 5).
Counsel also asserts that this matter was referred to her office by Manuel Moses, Esq. Although Mr. Moses has not appeared on this matter to date, his name is on the Retainer as counsel with her firm, and she makes this application on Mr. Moses' behalf as well (Gordon Affirmation, ¶ 6).
Counsel also submitted an affirmation to the Court, for review, in camera, when the Order to Show Cause was submitted for the Court's consideration. In the affirmation, counsel advised of other reasons for seeking leave to withdraw. In view of legal and ethical constraints imposed upon her, counsel cannot particularize the reasons in her motion papers.
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 March 1, 2019 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. The Gordon Law Firm of New York, 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 two years and four 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 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.
August 14, 2018
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 Filed Papers: Claim, Answer