Opinion
# 2019-054-003 Claim No. 129444 Motion No. M-92873
01-11-2019
MICHAEL P. and TANYA P., as Guardians of A.P. v. THE STATE OF NEW YORK
HOWARD R. BIRNBACH, ESQ. HON. LETITIA JAMES Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General
Synopsis
Motion, by OTSC, to be relieved as counsel granted,
Case information
| UID: | 2019-054-003 |
| Claimant(s): | MICHAEL P. and TANYA P., as Guardians of A.P. |
| Claimant short name: | MICHAEL P. |
| Footnote (claimant name) : | It is noted that Michael P. has died since the commencement of this claim and is therefore not a proper party claimant. There is no application before the Court at this time to amend the caption with a representative of the decedent's estate. |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129444 |
| Motion number(s): | M-92873 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | HOWARD R. BIRNBACH, ESQ. |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 11, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-3 were read and considered by the Court on the motion of Howard R. Birnbach, Esq. to be relieved as counsel for claimant, Tanya P., regarding Claim No. 129444:
Order to Show Cause, Attorney's Supporting Affirmation and Exhibits..................1
Response by Tanya P. and Exhibits..........................................................................2
By letter dated September 20, 2018, defendant indicated that it takes no position on the motion and would not oppose the motion...........................................................3
Howard R. Birnbach, Esq. was retained by claimants to commence this claim alleging that their son had been assaulted on December 19, 2016 while in the care of the New York State Office for People With Development Disabilities in North Salem, New York. Birnbach now brings this motion seeking an order permitting him to withdraw as counsel in this matter.
According to the affirmation of Birnbach, he was retained by Michael P., the ex-husband of claimant Tanya P., and Tanya P. because Michael P. and Birnbach were good friends. Thereafter, Michael P. died and the relationship between Tanya P. and Birnbach rapidly deteriorated. According to Birnbach, Tanya P. constantly feared that Birnbach would be disloyal to her. Birnbach strongly urged Tanya P. to seek new counsel (Movant's Ex. A). Tanya P. requested that Birnbach afford her two months to secure new counsel and Birnbach complied with her request; however there was no indication from Tanya P. regarding new counsel (Movant's Ex. B). Accordingly, Birnbach informed Tanya P. that he intended to bring a motion seeking to withdraw as counsel in this matter (Movant's Ex. C). Tanya P. did not reply to Birnbach regarding his intention to bring the instant motion.
By letter dated October 17, 2018, the Court granted Tanya P.'s request for a two-month adjournment of the instant motion to enable her to submit a response to Birnbach's motion. Tanya P. submitted exhibits and a statement wherein she indicated that she does not argue in opposition to Birnbach's motion; however she requests six months to retain new counsel.
The Rules of Professional Conduct provide that a lawyer may withdraw from representing a client if the client "fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively" (22 NYCRR 1200.0; Rules of Professional Conduct, Rule 1.16 [c] [7]; see Walker v Mount Vernon Hosp., 5 AD3d 590 [2d Dept 2004]). On a motion to withdraw as counsel, the movant must demonstrate reasonable notice to the client and good and sufficient cause for the withdrawal (see Willis v Holder, 43 AD3d 1441 [4th Dept 2007]; J.M. Heinike Assoc. v Liberty Natl. Bank, 142 AD2d 929 [4th Dept 1988]; Johns-Manville Sales Corp. v State Univ. Constr. Fund, 79 AD2d 782 [3d Dept 1980]).
Upon careful consideration of the papers before this Court, movant's application to be relieved as counsel in Claim No. 129444 is hereby GRANTED.
IT IS FURTHER ORDERED that the prosecution of Claim No. 129444 is stayed for 90 days from the filed-stamped date of this Decision and Order to permit Tanya P. an opportunity to retain new counsel. If by that time an appearance of counsel has not been filed with the Court, Tanya P. will be deemed to appear pro se. Tanya P. is reminded that she is required to inform the Clerk of the Court in Albany, in writing, of any change in her address.
IT IS FURTHER ORDERED that a preliminary conference on this claim is scheduled for May 9, 2019 at 10:00 a.m. at the Court of Claims, 140 Grand Street, Suite 507, White Plains where Tanya P. (either by counsel or pro se) and defendants' attorney shall appear in person. Should Tanya P. or her attorney fail to appear for the scheduled preliminary conference, this Court will dismiss the claim (22 NYCRR §206.10[g]).
IT IS FURTHER ORDERED that, within fourteen days of the filed-stamped date of this Decision and Order, Birnbach is directed to file an affidavit with the Chief Clerk's office indicating that service of a copy of this Decision and Order was made upon Tanya P. by certified mail, return receipt requested, and by ordinary mail to her last known address and that the case file has been turned over to her.
January 11, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims