Opinion
# 2015-015-100 Claim No. 124172 Motion No. M-87227
12-03-2015
TRISTAN PINHEIRO v. THE STATE OF NEW YORK
Law Offices of Elmer Robert Keach, III, P.C. By: Elmer Robert Keach, III, Esquire Honorable Eric T. Schneiderman, Attorney General No Appearance
Synopsis
Counsel's motion to withdraw as counsel for the claimant was granted subject to compliance with certain conditions.
Case information
| UID: | 2015-015-100 |
| Claimant(s): | TRISTAN PINHEIRO |
| Claimant short name: | PINHEIRO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124172 |
| Motion number(s): | M-87227 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Law Offices of Elmer Robert Keach, III, P.C. By: Elmer Robert Keach, III, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General No Appearance |
| Third-party defendant's attorney: | |
| Signature date: | December 3, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant's counsel, Law Offices of Elmer Robert Keach, III, PC, moves by order to show cause to withdraw as counsel for the claimant.
Claimant commenced this action seeking damages for medical malpractice in April 2014. Following completion of paper discovery and several depositions, claimant's counsel conferred with a medical expert which resulted in a recommendation to the claimant that the action be discontinued. Although the claimant initially agreed, he failed to return the stipulation of discontinuance that was provided for his signature or to return his attorney's phone calls. Claimant's counsel thereafter brought the instant order to show cause to be relieved as counsel for the claimant, serving both the claimant and defense counsel by regular mail and certified mail, return receipt requested. No opposition to the motion has been filed.
In order to terminate the attorney-client relationship " 'good and sufficient cause' " must be found to exist (Lake v M.P.C. Trucking, Inc., 279 AD2d 813 [3d Dept 2001], quoting Matter of Dunn, 205 NY 398 [1912]). Good and sufficient cause exists, inter alia, where "the client insists upon presenting a claim that is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law" or "the client insists upon taking action with which the lawyer has a fundamental disagreement" (22 NYCRR 1200.0] rule 1.16 [c] [1], [7]; see also Cantineri v Carrere, 106 AD3d 1475 [4th Dept 2013]). Given claimant's counsel's belief that the instant action lacks merit, and the claimant's failure to communicate with his attorney regarding his intention to either sign the proposed stipulation of discontinuance or continue the action, sufficient cause was established to warrant termination of the attorney client relationship.
Sufficient evidence having been submitted to the Court that service of the order to show cause and supporting papers was effected on both defense counsel and the claimant, at his last known address, and there being no opposition thereto, it is hereby
ORDERED, that upon compliance with the conditions hereinafter set forth, movant's application to withdraw as counsel for the claimant is granted pursuant to CPLR 321 (b) (2); and it is further
ORDERED, that within twenty (20) days of the filing of this Decision and Order, withdrawing counsel shall serve a copy of same with notice of entry upon claimant by regular mail and by certified mail, return receipt requested, at his last known address. A copy of the Decision and Order shall also be served upon defense counsel by regular mail and affidavit(s) of such service shall be filed with the Clerk of the Court, and it is further
ORDERED that the movant shall be relieved as counsel for claimant upon receipt of the affidavit(s) of service in the Office of the Clerk of the Court of Claims and it is further
ORDERED that all proceedings herein are stayed for sixty (60) days from the filing of this Decision and Order. Within such time claimant shall either secure new counsel who shall file a Notice of Appearance with the Clerk of the Court or notify the Clerk of the Court (New York State Court of Claims, P.O. Box 7344, Capitol Station, Albany, NY 12224) and the attorney for the defendant in writing of his intention to proceed without counsel (pro se).
December 3, 2015
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers: 1. Order to show cause dated August 13, 2015; 2. Affirmation of Elmer Robert Keach, III, Esquire dated August 6, 2015.