Opinion
# 2015-016-001 Claim No. 122271 Motion No. M-84146
01-15-2015
MALIK ROBERSON, by his Natural Mother and Legal Guardian, MARQUITA ROBERSON, and MARQUITA ROBERSON individually v. THE STATE OF NEW YORK
Kenneth J. Ready & Associates By: Kenneth J. Ready, Esq. Eric T. Schneiderman, Attorney General By: Peter S. Zadek, AAG
Synopsis
Case information
UID: | 2015-016-001 |
Claimant(s): | MALIK ROBERSON, by his Natural Mother and Legal Guardian, MARQUITA ROBERSON, and MARQUITA ROBERSON individually |
Claimant short name: | ROBERSON |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 122271 |
Motion number(s): | M-84146 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Kenneth J. Ready & Associates By: Kenneth J. Ready, Esq. |
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Peter S. Zadek, AAG |
Third-party defendant's attorney: | |
Signature date: | January 15, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
By Order to Show Cause, Kenneth J. Ready & Associates moves for permission to be relieved as counsel to claimants Malik Roberson, by his Natural Mother and Legal Guardian, Marquita Roberson, and Marquita Roberson individually. Claimants allege medical malpractice in connection with the labor and delivery of Malik "on or about January 2011" at SUNY Downstate Medical Center.
Pursuant to CPLR § 321 (b) (2), approval of the court is required in order for an attorney to withdraw as counsel for a litigant. To succeed on such a motion, the attorney must show reasonable notice to the client and good and sufficient cause for the withdrawal (see e.g. 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.
Here, with regard to notice, counsel has submitted an affidavit of service indicating that claimants were served with the Order to Show Cause as well as copies of correspondence which had been sent to claimants, essentially laying out the reasons for the request made herein; claimant did not respond. 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 were reviewed along with this Order to Show Cause: claimants' counsel's affirmation in support with copies of correspondence previously sent to claimants; and defendant's Affirmation taking no position as to the motion.
Accordingly, IT IS ORDERED that motion No. M-84146 be granted to the extent that:
1. Within thirty (30) days of the date of filing of this Decision and Order, Kenneth J. Ready & Associates shall serve a file-stamped copy of this Decision and Order on claimants at their 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, Kenneth J. Ready & Associates shall file with the Clerk of the Court proof of service on claimants 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, Kenneth J. Ready & 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;
5. In the event that claimants fail to appear pro se or by new counsel within the said ninety (90) day period, the claim herein will be deemed dismissed and no further order of this court will be required.
January 15, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims