Opinion
# 2018-053-542 Claim No. 126916 Motion No. M-92532
08-09-2018
SHAUN B. McGARVEY v. STATE OF NEW YORK
MAXWELL MURPHY, LLC BY: Alan D. Voos, Esq. BURDEN, HAFNER & HANSEN, LLC BY: Randy C. Mallaber, Esq.
Synopsis
Claimant's counsel moves for permission to withdraw as counsel and defendant does not oppose. Counsel established good cause based upon irreconcilable differences.
Case information
| UID: | 2018-053-542 |
| Claimant(s): | SHAUN B. McGARVEY |
| Claimant short name: | McGARVEY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126916 |
| Motion number(s): | M-92532 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | MAXWELL MURPHY, LLC BY: Alan D. Voos, Esq. |
| Defendant's attorney: | BURDEN, HAFNER & HANSEN, LLC BY: Randy C. Mallaber, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | August 9, 2018 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By order to show cause filed July 10, 2018, Maxwell Murphy, LLC moves for permission to withdraw as counsel for the claimant, Shaun B. McGarvey. The defendant appeared but did not oppose the motion.
Pursuant to CPLR 321 (b) (2), counsel may withdraw from representing a client with the permission of the Court. In order to withdraw, counsel must show reasonable notice to the client and good and sufficient cause for the withdrawal (Matter of Dunn (Brackett), 205 NY 398 [1912]; J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988]). Good cause for withdrawal includes irreconcilable differences between counsel and the client regarding the proper course to be pursued in the litigation (Sansiviero v Sanders, 117 AD2d 794 [2d Dept 1986]).
Counsel has demonstrated reasonable notice by filing with the Court affidavits indicating attempts made to serve Mr. McGarvey with a copy of the order to show cause. Claimant has not submitted any objection to counsel's withdrawal. In addition, the supporting affidavit of Alan D. Voos, Esq. outlines his firm's attempts to contact claimant by telephone, mail, e-mail and by other telephone contacts given the firm by claimant to discuss ongoing discovery and the possibility of a settlement. Counsel even sent an investigator to an address given by claimant. The investigator was advised that Mr. McGarvey had not lived there for some time.
Following oral argument and after counsel had left the courtroom, Mr. McGarvey appeared and confirmed that he had received notice of his attorneys' motion to withdraw as counsel. Mr. McGarvey advised that he had no objection to the withdrawal of Maxwell Murphy, LLC as his counsel and further confirmed that he and the firm had irreconcilable differences regarding the handling of this file.
Based on the foregoing, the motion of the law firm of Maxwell Murphy, LLC to withdraw as counsel for the claimant, Shaun B. McGarvey (M-92532) is granted subject to the following:
Within thirty (30) days after filing of this decision and order, the law firm of Maxwell Murphy, LLC shall serve a file-stamped copy of this decision and order upon claimant by certified mail, return receipt requested and by regular mail at the following address given by Mr. McGarvey to the Court:
Shaun B. McGarvey
470 Brookshire Road
Youngstown, New York 14174
In addition, the law firm of Maxwell Murphy, LLC shall serve a copy of the decision and order upon defendant's counsel by regular mail;
The law firm of Maxwell Murphy, LLC shall file proofs of service on claimant and defendant's counsel with the Clerk of the Court of Claims. Upon receipt of the proofs of service, the law office of Maxwell Murphy, LLC shall be relieved as counsel for claimant;
All proceedings herein are stayed for one hundred and twenty (120) days from the filing of this decision and order, in which time claimant, Shaun B. McGarvey, shall secure new counsel who shall file a notice of appearance with the Clerk of the Court (New York State Court of Claims, Box 7344, Capitol Station, Albany, New York 12224) or claimant shall notify the Clerk of the Court and counsel for the State of New York (Burden, Hafner & Hansen, LLC, 605 Brisbane Building, 403 Main St., Buffalo, New York, 14203) in writing of his intention to proceed pro se (without counsel); and
In the event claimant fails to appear pro se or by new counsel within one hundred and twenty (120) days of filing of this decision and order, claim no. 126916 will be deemed dismissed without further order of this Court.
August 9, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Order to show cause executed by Hon. J. David Sampson filed on July 10, 2018 and the affirmation of Alan D. Voos, Esq., dated July 2, 2018.