Diaz v. N.Y. Comprehensive Cardiology, PLLC

• Decision Date: 31 March 2014
• Citation: 2014 N.Y. Slip Op. 24081,43 Misc.3d 759,982 N.Y.S.2d 880
• Parties: Andrea DIAZ, Plaintiff, v. NEW YORK COMPREHENSIVE CARDIOLOGY, PLLC and Sanjeev Palta, M.D., Defendants.
• Court: New York Supreme Court

43 Misc.3d 759
982 N.Y.S.2d 880
2014 N.Y. Slip Op. 24081

Andrea DIAZ, Plaintiff,
v.
NEW YORK COMPREHENSIVE CARDIOLOGY, PLLC and Sanjeev Palta, M.D., Defendants.

Supreme Court, Kings County, New York.

March 31, 2014.

Michael Z. Zwal, Esq. of Bamundo, Zwal & Schermeron appeared on his firm's motion to be relieved as counsel for plaintiff Andrea Diaz.

Plaintiff Andrea Diaz appeared pro se.

Josie M. Connelly, Esq. of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP appeared on behalf of defendants New York Comprehensive Cardiology, PLLC and Sanjeev Palta, M.D.

[982 N.Y.S.2d 881]

JACK M. BATTAGLIA, J.

The Verified Complaint of plaintiff Andrea Diaz alleges that she sustained injury as a result of a fall at premises owned by defendant New York Comprehensive Cardiology, PLLC, where she was being treated by defendant Sanjeev Palta, M.D. By Order to Show Cause, Plaintiff's counsel moves for an order, pursuant to CPLR 321(b)(2), permitting counsel to withdraw. An Attorney's Affirmation in support asserts that, “[d]uring the course of discovery in this litigation, the Plaintiff and this firm have come to a disagreement as to how to proceed with the litigation, which disagreement cannot be resolved”; and that “[i]n light of the above irreconcilable differences concerning the manner in which to proceed, the attorney-client relationship between the Plaintiff ... and the office of the undersigned, has been irreparably compromised.” (Attorney's Affirmation ¶¶ 4, 5.) Counsel submit a copy of a Retainer Agreement dated August 21, 2008, signed by Plaintiff; the Agreement does not address the possibility of counsel's withdrawal from the representation.

Courts have permitted counsel to withdraw on grounds of “irreconcilable differences” ( see Misek–Falkoff v. Metropolitan Tr. Auth., 65 A.D.3d 576, 577, 883 N.Y.S.2d 722 [2d Dept.2009] ) and a “breakdown in the attorney-client relationship” ( see Musachio v. Musachio, 80 A.D.3d 738, 738, 915 N.Y.S.2d 497 [2d Dept.2011] ), in the cited cases based upon nonpayment of legal fees. Here, it became apparent on the hearing of counsel's motion that counsel's ground for seeking permission to withdraw is more accurately found in the Rules of Professional Conduct, which replaced the former Code of Professional Responsibility on April 1, 2009.

Rule 1.16 permits an attorney to ethically withdraw from representing a client when the client's claim or defense “is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law” ( see Rules of Professional Conduct, Rule 1.16[c][6], 22 NYCRR § 1200.0.) Courts have found circumstances permitting withdrawal under the former Disciplinary Rule to the same effect. ( See Code of Professional Responsibility, DR 2–110[c], 22 NYCRR § 1200.15; Walker v. Mount Vernon Hosp., 5 A.D.3d 590, 772 N.Y.S.2d 832 [2d Dept.2004];Positano v. Maimonides Med. Centr., 238 A.D.2d 560, 561, 657 N.Y.S.2d 966 [2d Dept.1997];Wells v. Community Hosp., 120 A.D.2d 584, 585, 502 N.Y.S.2d 69 [2d Dept.1986].) But courts have also found the circumstances not to warrant withdrawal pursuant to the rule. ( See Willis v. Holder, 43 A.D.3d 1441, 1441, 842 N.Y.S.2d 841 [4th Dept.2007];LeMin v. Central Suffolk Hosp., 169 A.D.2d 821, 821, 565 N.Y.S.2d 190 [2d Dept.1991];Rann v. Lerner 160 A.D.2d 922, 922, 554 N.Y.S.2d 649 [2d Dept.1990].) Rule 1.16 recognizes that some prejudice might result from the termination of the representation, even where withdrawal is permitted or required. ( See Rule 1.16[e].)

Since an attorney presumably will not accept representation of a client whose claim or defense is sufficiently questionable so as to allow later withdrawal under the Rule—or, at least, should not ( see Estate of Miolan v. State of New York, 39 Misc.3d 1076, 1078, 967 N.Y.S.2d 610 [Ct.Cl.2013] ), counsel's “negative reassment of the plaintiff's case” ( see Wells v. Community Hosp., 120 A.D.2d at 585, 502 N.Y.S.2d 69) must be based on some change in circumstances as the matter progressed. ( See Kramer v. Salvati, 88 A.D.2d 583, 583, 449 N.Y.S.2d 795 [2d Dept.1982] [withdrawal purportedly based on letter of medical expert more than three years after action commenced where

[982 N.Y.S.2d 882]

court found letter indicated some merit to action].)

Here, counsel asserts a change of circumstances in a material difference between Ms. Diaz's description of the circumstances of her fall at the time the action was commenced and upon her recent examination before trial. Counsel does not contend that Ms. Diaz was ever less than truthful in her communications with counsel, or otherwise failed to cooperate with a proper investigation of her claim. On her part, Ms. Diaz, whose first language was Spanish, does not contend that she was not able to adequately communicate with counsel. For all that appears, any difference in Ms. Diaz's account of her fall was the result of miscommunication or misunderstanding, perhaps occasioned or exacerbated by language.

This Court has not attempted to reconstruct the course of communications between Ms. Diaz and counsel from July 2008, when counsel accepted her as their client, and her recent examination before trial, nor to assess the adequacy of Ms. Diaz's and counsel's respective participation in the interviewing and counseling process, as might be appropriate, if not necessary, when an attorney is seeking to withdraw because the client has failed to cooperate or otherwise made it unreasonably difficult for the attorney to perform effectively. ( See Rules of Professional Conduct, Rule 1.6[c][7], 22 NYCRR § 1200.0). Here, even if the Court were able to locate the time and source of the miscommunication or misunderstanding, and were to ascribe some fault to counsel for its occurrence, the Court is left with counsel's contention that continuation with the representation would be inconsistent with the ethics of the profession ( see Rules of Professional Conduct, Rule 3.1, 22 NYCRR § 1200.0; former Code of Professional Responsibility, DR 7–102[A][2], 22 NYCRR § 1200.33; Cohen v. Tzimas, 135 Misc.2d 335, 337, 515 N.Y.S.2d 173 [Sup.Ct., N.Y. County 1987];Rindner v. Cannon Mills, Inc., 127 Misc.2d 604, 606–07, 486 N.Y.S.2d 858 [Sup.Ct., Rockland County 1985].) Moreover, without determining that the ethical and regulatory standards are...