Opinion
# 2016-016-019 Claim No. 125646 Motion No. M-87774
03-16-2016
HONEST HOLMES, an infant by his mother and natural guardian, NATASHA BELL, and NATASHA BELL, individually v. THE STATE OF NEW YORK
The Cochran Firm, Paul B. Weitz & Associates, P.C. By: Steven Gold, Esq. Eric T. Schneiderman, Attorney General By: Mary Beth T. Ott, AAG
Synopsis
Case information
| UID: | 2016-016-019 |
| Claimant(s): | HONEST HOLMES, an infant by his mother and natural guardian, NATASHA BELL, and NATASHA BELL, individually |
| Claimant short name: | HOLMES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125646 |
| Motion number(s): | M-87774 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | The Cochran Firm, Paul B. Weitz & Associates, P.C. By: Steven Gold, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Mary Beth T. Ott, AAG |
| Third-party defendant's attorney: | |
| Signature date: | March 16, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By Order to Show Cause, The Cochran Firm, Paul B. Weitz & Associates by Steven Gold, Esq. ("Weitz & Associates"), has moved for permission to be relieved as counsel to claimants Honest Holmes, an infant, by her mother and natural guardian, Natasha Bell, and Ms. Bell, individually. The claim is for medical malpractice, alleging among other things, the failure to perform a timely cesarean section at the State University's Downstate Medical Center in Brooklyn.
Under CPLR § 321 (b) (2), permission of the court in which the suit is pending is required before a lawyer may withdraw as counsel for a litigant. To succeed on such a motion, the attorney must show reasonable notice to the client and good cause for the withdrawal (J. M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988]). What constitutes good cause lies within the discretion of the court.
Mr. Gold cites the Code of Professional Responsibility which authorizes withdrawal by counsel when "The client . . . renders it unreasonably difficult for the lawyer to carry out employment effectively" (DR 2-110 [c ][1][d]). Counsel indicates that his client, Ms. Bell, has "on multiple occasions" failed to respond when he tried to contact her.
Mr. Gold adds that such withdrawal would not adversely affect claimants' interest in the litigation inasmuch as the suit was recently filed - - the claim is dated February 4, 2015 and is based upon acts or omissions occurring up to and including October 30, 2014. Further, counsel indicates that no discovery has taken place.
In response, the defendant State of New York has submitted an Affirmation in Partial Opposition. The State does not oppose counsel's request to withdraw, but maintains that Ms. Bell's lack of responsiveness to her lawyer suggests a failure to prosecute. To that end, the State argues that should claimants fail to appear with a new lawyer (or pro se) within 60 days, the case should be dismissed with prejudice. Mr. Gold's application requests a 90-day period and any dismissal would be without prejudice.
The longer period of time is appropriate given that Natasha Bell will have to secure new counsel. Moreover, Rule 3216 of the CPLR, recently amended in 2014 (by Chapter 371) implies that the "general pattern of delay" be directly known to the Court - - such as failures to appear, etc. In addition, Rule 3216 does not permit dismissal earlier than one year after the issue has been joined. The State's answer in this matter was dated March 17, 2015 and filed March 20, 2015; the time frame could be satisfied, but the closeness to it supports Mr. Gold's point that the case is in its early stages.
With regard to notice, Weitz & Associates has submitted an affidavit of service indicating that Ms. Bell was served with the Order to Show Cause. As to good and sufficient cause for the withdrawal, having reviewed the submissions, I find that counsel has satisfied the burden to sustain this motion.
The following submissions have been reviewed by the Court - - from claimant's counsel: an Order to Show Cause (with an Affidavit of Service thereof upon Natasha Bell and upon the Office of the State Attorney General), an Attorney Affirmation (with exhibit A) and a Reply Affirmation; and from the defendant State of New York - - an Affirmation in Partial opposition. The Court has not received a submission on behalf of the claimants from Natasha Bell. --------
Accordingly, IT IS ORDERED that motion No. M-87774 is granted to the extent that:
1. Within thirty (30) days of the date of filing of this Decision and Order, Weitz & Associates shall serve a file-stamped copy of this Decision and Order on claimant Natasha Bell at her last known address by both regular mail and by certified mail, return receipt requested, and on defendant by regular mail;
2. Within thirty (30) days thereafter, Weitz & Associates shall file with the Clerk of the Court proof of service on claimant by both regular mail and by certified mail, return receipt requested, and on defendant by regular mail. Upon the Clerk's receipt of such proofs of service, The Cochran Firm, Paul B. Weitz & Associates shall be relieved from representation of claimants;
3. Claimants shall, within ninety (90) days of the filing of this Decision and Order, notify the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, NY 12224) and the State of New York (New York State Department of Law, 120 Broadway, 12th Floor, New York, NY 10271) in writing of their intention to proceed pro se (without counsel) or file a notice of appearance by a new attorney;
4. Prosecution of this claim is stayed pending the conclusion of the foregoing ninety (90) day period.
March 16, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims