Cimato, Jr. v. State Farm Fire and Casualty Company

Filing 49

ORDER granting 46 MOTION to Withdraw as Attorney filed by Anthony Cimato, Jr. Signed by Hon. H. Kenneth Schroeder Jr. on 2/5/2019. (KER)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY CIMATO, JR.,
Plaintiff,
v.
16-CV-94A(Sr)
STATE FARM FIRE & CASUALTY COMPANY,
Defendant.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. Richard J. Arcara,
pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #8.

Plaintiff commenced this action claiming breach of a homeowner’s
insurance contract and seeking to enforce the appraisal provision in his contract of
insurance after his home and personal property was damaged by a burst water pipe on
January 8, 2014. Dkt. #1. On June 21, 2014, defendant remitted a partial payment of
$109,552.85 for the loss. Dkt. #1. The matter was removed to this Court on February
4, 2016 based upon diversity of citizenship. Dkt. #1. Defendant denied plaintiff’s claim
on March 14, 2016. Dkt. #31, p.9.

By Order entered January 15, 2019, the Court granted defendant’s motion
to compel plaintiff to submit to deposition. Dkt. #45. The Court directed plaintiff to
submit to a deposition no later than March 1, 2019, and warned plaintiff that his failure
to do so would result in sanctions pursuant to Rule 37(b)(2) and Rule 41(b) of the

Federal Rules of Civil Procedure, including an order precluding plaintiff from presenting
testimony at trial in support of his claim of loss and/or dismissal of the action. Dkt. #45.

Currently before the Court is a motion by Christopher M. Berloth, Esq., to
withdrawal as counsel for plaintiff. Dkt. #46. Counsel has submitted an affidavit, in
camera, setting forth the basis of his motion, as well as a certificate of service by mail
and electronic mail upon plaintiff. Dkt. #48.

Rule 83.2(d) of the Western District of New York Rules of Civil Procedure
provides:
An attorney of record may file and serve a Motion to
Withdraw as Attorney. The moving attorney shall submit any
information reasonably necessary to support the application,
including information that may be confidential or covered by
the attorney-client privilege, in camera to the Judge, and
must also serve such documents on the client. The Court
may grant the motion upon a finding of good cause.
The decision to grant or deny a motion to withdraw as counsel is committed to the
discretion of the district court. Whiting v. Lacara, 187 F.3d 317, 320 -321 (2d Cir. 1999).
“When a court denies an attorney leave to withdraw it is usually because the client's
rights will be prejudiced by the delay necessitated in obtaining replacement counsel or
because the court's trial calendar will be adversely affected.” Welch v. Niagara Falls
Gazette, 2000 WL 1737947, *3 (W.D.N.Y. Nov. 17, 2000). Whiting, 187 F.3d at 320.

Upon review of the affidavit of Christopher M. Berloth, Esq., I find good
cause to permit the withdrawal of Mr. Berloth as counsel for plaintiff, Anthony Cimato, Jr.

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Accordingly, it is hereby ORDERED that:

(1)

the motion of Christopher M. Berloth, Esq., seeking to withdraw as

counsel for plaintiff (Dkt. #46), is granted;

(2)

the Clerk of the Court shall serve a copy of this Order upon plaintiff,

Anthony Cimato, Jr., via United States mail at P.O. Box 178, East Amherst, NY 14051;

(3)

Plaintiff Anthony Cimato, Jr., shall retain new counsel, who shall file

a notice of appearance, or advise the Court that he is proceeding pro se, no later than
March 8, 2019; and

(4)

Plaintiff Anthony Cimato, Jr. shall submit to deposition no later than

April 12, 2019.

Plaintiff is forewarned that his failure to comply with this Order may result
in dismissal of this action for failure to prosecute pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.

SO ORDERED.

DATED:

Buffalo, New York
February 5, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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