Opinion
# 2013-048-108 Claim No. 120758 Motion No. M-83343
08-13-2013
CLANCY v. THE STATE OF NEW YORK
Synopsis
The Court The Court granted Claimant's Counsel's application seeking to reargue a prior Decision and Order and, upon reargument, granted Claimant's Counsel's application for leave to withdraw as attorney of record.
Case information
UID: 2013-048-108 Claimant(s): MARK CLANCY Claimant short name: CLANCY Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120758 Motion number(s): M-83343 Cross-motion number(s): Judge: GLEN T. BRUENING LAW OFFICE OF WAYNE M. RUBIN Claimant's attorney: By: Wayne M. Rubin, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: G. Lawrence Dillon, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: August 13, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Mark Clancy, commenced this action seeking money damages for personal injuries he allegedly sustained on and after May 20, 2011 while an inmate at Gouverneur Correctional Facility, under the supervision of the Department of Corrections and Community Supervision ("DOCCS"). Specifically, Claimant alleges that he sustained a hernia while being directed to lift certain lockers and beds in conjunction with the stripping and waxing of dormitory floors. Claimant contends that he underwent surgery in July 2011 and subsequently re-injured himself while attempting to climb onto the top bunk, the assignment to which Claimant contends was contrary to medical advice. By Notice of Appearance, filed March 19, 2012, Wayne M. Rubin, Esq., of the Law Office of Wayne M. Rubin (Law Office), appeared on behalf of Claimant. By Decision and Order dated January 9, 2013, this Court denied Attorney Rubin's application seeking leave for his Law Office to withdraw as attorney of record for Claimant (see Clancy v State of New York, UID No. 2013-048-081 [Ct Cl, Bruening, J., Jan. 9, 2013]). Attorney Rubin now seeks leave to reargue the Court's prior Decision and Order. Claimant has not submitted any opposition to the application, and Defendant has taken no position with regard to the application.
A motion to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). Such a motion is addressed to the sound discretion of the court (see Peak v Northway Travel Trailers, 260 AD2d 840, 842 [3d Dept 1999]). However, it "is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted" (Matter of Mayer v National Arts Club, 192 AD2d 863, 865 [3d Dept 1993]). As is relevant to Attorney Rubin's application, an attorney of record may, at any time, seek an order from the Court terminating the attorney-client relationship upon good and sufficient cause and upon reasonable notice to his or her client (see CPLR § 321 [b] [2]; Matter of Dunn [Brackett], 205 NY 398, 403 [1912]; Lake v M.P.C. Trucking, 279 AD2d 813, 814 [3d Dept 2001]). Initially, as had been directed in the Order to Show Cause that is currently before the Court, the Order and its supporting papers were served upon the Claimant by regular mail and by certified mail, return receipt requested, and upon the Attorney General's Office by ordinary mail (see Affirmations of Service, dated April 1, 2013). Accordingly, the Court concludes that Claimant has been duly notified of this application.
In its prior Decision and Order, the Court found that, based on Attorney Rubin's supporting affirmation and a confidential affirmation setting forth his reasons why the Law Office sought to be relieved as counsel in this matter, Attorney Rubin did not provide evidence of deterioration of the attorney-client relationship (see Lake v M.P.C. Trucking, 279 AD2d at 814), non-payment of legal fees (see Tartaglione v Tiffany, 280 AD2d 543, 543 [2d Dept 2001]), that Claimant has failed to remain in contact with and respond to communication from counsel (see Bok v Werner, 9 AD3d 318, 318 [1st Dept 2004]), or any other "good and sufficient cause" to withdraw as counsel of record for Claimant (Lake v M.P.C. Trucking, 279 AD2d at 814; see Rules of Professional Conduct [22 NYCRR 1200.00] rule 1.16 [c]; Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007]).
In support of his current application, Attorney Rubin submits a further confidential affirmation and argues that the grounds presented in its original application constitute "good and sufficient cause" to withdraw as counsel of record. In light of information contained in the confidential affirmation and in noting that the facts of this matter are akin to the facts in Wells v Community Hosp. at Glen Cove (120 AD2d 584 [2d Dept 1986]), which was cited by Mr. Rubin in his current application, the Court finds that Attorney Rubin has presented good and sufficient cause to withdraw as counsel of record for Claimant.
Accordingly, it is hereby
ORDERED that Motion No. M-83343 of Claimant's attorney, the Law Office of Wayne M. Rubin, seeking leave to reargue the prior Decision and Order of this Court is granted and, upon reargument, the application made by the Law Office of Wayne M. Rubin, which was the subject of Motion No. M-82269, seeking leave to withdraw as attorney of record for Claimant, is granted provided that the Law Office of Wayne M. Rubin's withdrawal as Claimant's attorney shall not take effect before the Law Office of Wayne M. Rubin files an affidavit of service of a file-stamped copy of this Decision and Order upon Claimant, by certified mail, return receipt requested, and by regular mail, within 30 days of the filing of this Decision and Order, and it is further
ORDERED that within 90 days of the Law Office of Wayne M. Rubin's service of this Decision and Order upon Claimant, Claimant shall file with the Clerk of the Court (New York State Court of Claims, Justice Building, P.O. Box 7344, Capitol Station, Albany, NY 12224) and the New York State Attorney General (207 Genesee Street, Room 508, Utica, NY 13501) either (1) a written statement that he will proceed with his Claim without an attorney, or (2) a notice of appearance by a new attorney, and it is further
ORDERED that prosecution of this Claim is stayed pending the conclusion of the foregoing 90-day period.
August 13, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause, filed April 15, 2013;
Further Confidential Attorney Affirmation of Wayne M. Rubin, Esq., dated March 3, 2013, with attached Decision and Order entitled Clancy v State of New York, UID No. 2013-048-081 [Ct Cl, Bruening, J., Jan. 9, 2013], and Order to Show Cause and Supporting papers with respect to Motion No. M-82269;
Correspondence from G. Lawrence Dillon, Esq., received April 2, 2013.