Opinion
# 2016-050-016 Claim No. 87767 Motion No. M-87459
03-08-2016
JONATHAN THORNTON A/K/A JONATHAN DeLUCA, BY HIS GUARDIAN, THOMAS L. CARACCIA AND ANTONINA THORNTON, INDIVIDUALLY v. THE STATE OF NEW YORK
Brody, O'Conner & O'Conner, Esqs. By: Scott A. Brody, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph Tipaldo, Assistant Attorney General
Synopsis
This action for damages for medical malpractice was pending for 20 years when it was transferred to the undersigned in 2014. The law firm of Brody, O'Conner & O'Conner, Esqs. now moves for leave to withdraw. Claimant opposes the requested relief. The motion was an eleventh hour effort to be released from proceeding to trial, the granting of which would leave claimants in the lurch and based upon the foregoing, the motion was in all respects denied.
Case information
| UID: | 2016-050-016 |
| Claimant(s): | JONATHAN THORNTON A/K/A JONATHAN DeLUCA, BY HIS GUARDIAN, THOMAS L. CARACCIA AND ANTONINA THORNTON, INDIVIDUALLY |
| Claimant short name: | THORNTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | By stipulation dated November 20, 2012, the parties by counsel stipulated to amend the caption herein - to the caption as set forth in this decision and order -based upon the fact that Thomas L. Caraccia had been appointed guardian of Jonathan Thornton a/k/a Jonathan Michael Deluca by order of the Circuit Court of Florida in and for Palm Beach County (Guardianship Division) dated July 9, 2009; this Court hereby so orders that stipulation. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 87767 |
| Motion number(s): | M-87459 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Brody, O'Conner & O'Conner, Esqs. By: Scott A. Brody, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Joseph Tipaldo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 8, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action for damages for medical malpractice was pending for 20 years when it was transferred to the undersigned by order of the Acting Presiding Judge filed May 12, 2014.
The law firm of Brody, O'Conner & O'Conner, Esqs. now moves for leave to withdraw pursuant to CPLR 321 (b) (2) and Rule 206.8 of the Uniform Rules of this Court and for a stay of the action and other relief. The order to show cause through which this application was made was signed by the undersigned on September 17, 2015 and made returnable October 14, 2015. It was thereafter adjourned on consent to December 2, 2016 (as confirmed in a letter to the Court dated October 13, 2016).
The motion is opposed by Thomas Caraccia, who is the father and guardian of Jonathan DeLuca (and who now resides in Palm Beach County, Florida). Thomas Caraccia has retained the law firm of Powell & Roman, LLC to represent him "solely in the capacity of opposing this motion" (see affidavit of Thomas Caraccia at paragraph 2). Mr. Caraccia pointedly opposes the requested relief and denies the existence of disagreements which the moving attorney refers to in his affirmation in support of the motion.
This case is over 20 years old and had been assigned to numerous judges of this Court prior to its reassignment to the undersigned on May 12, 2014. The Court has reviewed the proof offered in support of the contention that there has been a point of critical impasse in the relationship between counsel and client and finds such contention to be without merit. Understandably, what is reflected in the communications between movant counsel and the client is a level of stress and strain which could be expected based on the shockingly lengthy pendency of this case. However, this feature of tension between attorney and client must be viewed in the context of the unescapable reality (as contented by Mr. Caraccia at paragraphs 5 and 6 of his affidavit in opposition) that a grant of the requested relief would effectively leave claimant abandoned at the brink of trial. The Court finds that to grant the motion at this point, in effect, would leave claimants forced to proceed on a self-represented basis in a complex medical malpractice claim because it is self evident that obtaining substitute counsel would be virtually impossible given the age and extensive history of this case. The facts asserted by movant were known by movant for years prior to the instant motion being made. This motion is an eleventh hour effort to be released from proceeding to trial, the granting of which would leave claimants in the lurch (see Miolan v State of New York, 39 Misc 3d 1076 [2013]; McCord v. State of New York, 240 NYLJ 65 [2008] aff'd 63 AD3d 1120 [2d Dept 2009]).
This case has been scheduled for trial previously while assigned to another Judge of this Court as well as before the undersigned. --------
Based upon the foregoing, this motion is in all respects denied (see Damore v Helmsley Palace, Inc., 157 AD2d 518 [1st Dept 1990]; Wieland v Dr. Gerald Moss, 151 Misc 2d 468 [1991]; cf. Wells v Supreme Court of New York, 120 AD2d 584 [2d Dept 1986]). Movant has failed to demonstrate that good cause exists such as would warrant the requested relief (see McCord v. State of New York, supra). The movant's assertions, in effect, of a breakdown in the attorney-client relationship are simply inadequate to outbalance the fact that, after all these years, claimants would be forced against their wishes to proceed to trial representing themselves.
March 8, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the order to show cause to be relieved as counsel by Brody, O'Conner & O'Conner, Esqs: 1. Order to Show Cause, Affirmation 2. Affirmation in Partial Opposition. 3. Affidavit in Opposition. 4. Affirmation in Reply.