Opinion
# 2012-040-017 Claim No. 113017 Motion No. M-80945
04-05-2012
VERETIN v. THE STATE OF NEW YORK
Synopsis
Counsel's motion to withdraw pursuant to CPLR § 321(b)(2) granted. Case information
UID: 2012-040-017 Claimant(s): GUNTHAR VERETIN Claimant short name: VERETIN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 113017 Motion number(s): M-80945 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY LAW OFFICES OF ADAM M. THOMPSON Claimant's attorney: By: Adam M. Thompson, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG Third-party defendant's attorney: Signature date: April 5, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant's counsel, by Order to Show Cause, has moved pursuant to CPLR § 321(b)(2) for an order granting him leave to withdraw. Counsel has submitted proof of service that Claimant and the Attorney General have been served with copies of the motion papers. As directed by the Court, Claimant was served by regular mail and registered mail, return receipt requested, and the State was served by regular mail. The Court has not received any opposition to this motion to withdraw.
The Court has been informed that the item sent by registered mail was returned to Movant as undeliverable. The Court was further advised, however, that the item sent to Claimant by regular mail was not returned. If the letter is not returned by the U.S. Postal Service, it is presumed that it has been received (Allen v State of New York, Ct Cl, Claim No. 105397, Motion No. M-73731, dated August 29, 2007, Milano, J. [UID No. 2007-041-039]; see Thibeault v Travelers Ins. Co., 37 AD3d 1000, 1001 [3d Dept 2007]).
In Adam M. Thompson's affirmation submitted in support of the motion, counsel asserts that upon Claimant's release from State custody, he was deported to Latvia and will not be allowed to re-enter the United States. Counsel further asserts that he and Claimant exchanged letters and spoke by telephone after Claimant's release from prison and deportation. Mr. Thompson asserts that the last correspondence he received from Claimant is dated June 16, 2010 (Ex. 2 attached to Affirmation in Support). He further avers that he has sent letters to Claimant at the addresses provided by Claimant and that he has not received a response nor was the correspondence returned. The last letter to Claimant was dated November 14, 2011 (see Ex. 3 attached to Affirmation in Support) and re-sent by Federal Express on November 28, 2011 (see Ex. 4 attached to Affirmation in Support). Counsel states that he attempted to contact Claimant on the telephone at the number provided by Claimant and that his calls were unanswered (Affirmation in Support, ¶ 23). Mr. Thompson further asserts that he has performed an internet search of Claimant's name and was not able to locate Claimant (Affirmation in Support, ¶ 28).
As Claimant has failed to keep his counsel apprised of his whereabouts, it appears he is no longer interested in prosecuting this action. The Court can see no significant resultant prejudice to Claimant if counsel's request is granted, and counsel has demonstrated sufficient cause to be permitted to withdraw (Solomon v Solomon, 172 AD2d 1081 [4th Dept 1991]).
The motion is granted and the Chief Clerk is directed to amend his records by replacing Movant's name as attorney of record and, for now, indicating that Claimant will act on his own behalf. Claimant is to advise the Court by August 15, 2012 if he has obtained new counsel, is appearing pro se, or wishes to withdraw the Claim. Mr. Thompson is directed to turn over any and all records relating to this action to Claimant, if Claimant should contact him, or to new counsel for Claimant, upon request. This Claim was filed approximately five-and-one-half years ago, a Note of Issue and Certificate of Readiness has been filed and the Claim was scheduled for trial, which has now been adjourned, based upon counsel's inability to contact his client. Thus, if he is still interested in prosecuting his claim, Claimant will have time to retain new counsel and Defendant will not be substantially prejudiced by the delay in trial attributable to counsel's withdrawal.
Therefore, based upon the foregoing, it is:
ORDERED that Claimant's counsel's motion for leave to withdraw is granted; and it is further
ORDERED that Claimant's counsel serve, by first-class mail and registered mail, return receipt requested, a copy of this Decision and Order upon Claimant, at his last-known addresses, and also serve the same upon the Attorney General by first-class mail. Thereafter, Claimant's counsel is to file the affidavits of service in regard to the foregoing with the Clerk of the Court.
April 5, 2012
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were considered on Claimant's attorney's motion for an order permitting withdrawal:
Papers Numbered
Order to Show Cause, Affirmation
and Exhibits attached and Affidavit
of Service 1
Filed Papers: Claim, Answer