Opinion
# 2015-049-007 Claim No. 123213 Claim No. 123112 Motion No. M-86060
01-23-2015
MELISSA SAUCEDO v. CITY UNIVERSITY OF NEW YORK
Wingate, Russotti, Shapiro & Halperin, LLP By: Brielle C. Goldfaden, Esq. Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General
Synopsis
Case information
| UID: | 2015-049-007 |
| Claimant(s): | MELISSA SAUCEDO |
| Claimant short name: | SAUCEDO |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123213, 123112 |
| Motion number(s): | M-86060 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Wingate, Russotti, Shapiro & Halperin, LLP By: Brielle C. Goldfaden, Esq. |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 23, 3015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
By claim no. 123213, claimant Melissa Saucedo alleges that she was injured when the ceiling and/or ceiling tiles fell upon her while sitting in a classroom of Hunter College, due to the negligence of defendant City University of New York ("CUNY"). An earlier claim, no. 123112, had been filed alleging the same facts.
Although the motion only addresses claim no. 123213, it clearly applies to counsel's representation as to claim no. 123112 as well. No answer was filed to the latter claim. It appears from the records of conferences before the Court that it was rejected for improper verification. Since it sets forth the same facts as the later claim, I will treat this motion as encompassing both.
By Order to Show Cause ("OTSC"), the firm of Wingate, Russotti, Shapiro & Halperin, LLP (the "Wingate firm") moves for permission to be relieved as counsel to claimant.
To prevail on such a motion, counsel must show reasonable notice to the client and good and sufficient cause for the withdrawal (see Rivardeneria v New York City Health & Hosps. Corp., 306 AD2d 394 [2d Dept 2003]). Here, counsel has submitted proof of service, showing that it personally served claimant with the OTSC in accordance with CPLR 308(2) on December 5, 2014, and sent a further copy to her by regular mail, as set forth in the Order to Show Cause (see CPLR 321[b][2] [on motion to withdraw, notice must be provided to client "as the court may direct"]).
I therefore find that counsel has demonstrated proper notice to the claimant.
A hearing was conducted on the application on January 14, 2015. Claimant did not submit any opposition papers or appear at the hearing. Claimant's counsel represented that she had spoken by phone with Saucedo, who indicated that she had written the Court to ask for time to secure new counsel. No such letter has been received in chambers, and in any event, there is no indication that claimant objects to counsel's application.
With respect to good cause shown for withdrawal, counsel has submitted the affirmation of Brielle C. Goldfaden, an associate at the Wingate firm. She attests that the firm tried repeatedly to contact claimant, receiving no response. Specifically, the affirmation states that after a deposition was scheduled for July 15, claimant - after hanging up during one call - did not respond to a subsequent email and letter, and the deposition had to be adjourned (see Goldfaden Aff. ¶ 6-7). Again, efforts to contact claimant via phone and email were not returned, and the deposition was cancelled once more (id. ¶ 7).
According to Goldfaden, she sent further e-mails to claimant on October 10 and 16, 2014, and received no response. Copies of all the relevant emails are appended to the motion.
Good cause for withdrawal has been found where the client is unwilling to communicate with counsel (see Mazzuca v Warren P. Wielt Trust, 59 AD3d 907 [3d Dept 2009] [motion to withdraw granted in light of counsel's "difficulty in communicating with plaintiff and her refusal to keep in contact or attend appointments"]). Counsel has shown that this is the case here, in a detailed and specific manner, and has submitted evidence to support its representations.
In view of the foregoing, and the lack of opposition to this application by claimant, I find that there has been a showing of good cause and reasonable notice sufficient for counsel to be relieved (see Ben-Yu Zhan v Sun Wing Wo Realty Corp., 208 AD2d 668 [2d Dept 1994] [affirming grant of motion by counsel to withdraw when client does not oppose motion]).
Therefore, it is
ORDERED that motion No. M-86060 is granted, and permission to withdraw as attorneys for claimant is hereby granted to the Wingate firm, subject to the terms of this Decision and Order. It is further
ORDERED that within 15 days of the filing of this Decision and Order, withdrawing counsel shall serve a copy thereof upon claimant, by regular mail and by certified mail, return receipt requested, at her last known address. A copy of the Decision and Order shall also be served upon defense counsel by regular mail and affidavits of such service shall be filed with the Clerk of the Court. Upon the Clerk's receipt of said proofs of service, withdrawing counsel shall be relieved from representation of claimant. It is further
ORDERED that no further proceedings shall take place with respect to these claims until ninety (90) days after the service of this Decision and Order upon claimant, so as to permit claimant to seek new counsel if desired.
Accordingly, within ninety days after the filing of this Decision and Order, claimant Melissa Saucedo shall either:
(a) 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 (Edward J. Curtis, AAG, New York State Department of Law, 120 Broadway, New York, New York 10271) in writing of her intention to proceed without counsel (pro se); or
(b) cause to be filed a notice of appearance by a new attorney.
If claimant fails to appear pro se or by new counsel within such 90-day period, claims no. 123112 and 123213 shall be dismissed.
January 23, 3015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers considered:
1. Claimant's Motion to Withdrawal as Attorneys by Order to Show Cause with supporting papers.