Opinion
# 2019-040-004 Claim No. 128633 Motion No. M-93073
01-24-2019
In the Matter of the Claim of RICHARD KESICK v. THE STATE OF NEW YORK
VANDETTE PENBERTHY LLP By: James M. VanDette, Esq. LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Motion by counsel to withdraw pursuant to CPLR § 321(b) granted.
Case information
| UID: | 2019-040-004 |
| Claimant(s): | In the Matter of the Claim of RICHARD KESICK |
| Claimant short name: | KESICK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128633 |
| Motion number(s): | M-93073 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | VANDETTE PENBERTHY LLP By: James M. VanDette, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 24, 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 an alleged slip and fall at Washington Correctional Facility on May 1, 2015 due to an unsafe and hazardous shower floor (Amended Claim, ¶ 5, In Camera Affirmation of James M. VanDette, Esq., ¶ 3). In Mr. VanDette's affirmation submitted in support of the Motion, counsel asserts that, after joinder of issue, differences developed between Claimant and counsel as to how to proceed with the prosecution of this matter (VanDette Affirmation, ¶ 10). In addition, counsel provided the Court, as mentioned above, 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, and telephoned the Court on November 8, 2018 to advise the Court that he would not be appearing on the Motion's Return Date. 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. Claimant is to advise the Court by August 1, 2019 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. The law firm of VanDette Penberthy 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 a little over two and one-half years ago and, while some discovery has been completed, the matter is not yet ready for trial. 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.
January 24, 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 Exhibits attached, and Affidavits of Service 1 Filed Papers: Claim, Amended Claim, Answer