Positano v. Maimonides Medical Center

—In an action to recover damages for medical malpractice, the plaintiffs appeal from (1) a decision of the Supreme Court, Kings County (Spodek, J.), dated January 18, 1996, and (2) an order of the same court, dated February 29, 1996, entered upon the decision, which granted the motion of their attorneys for leave to withdraw and directed them to proceed pro se unless they obtained new counsel within 60 days. The notice of appeal from the decision is deemed a premature notice of appeal from the order (see, CPLR 5520 [c]). Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further, Ordered that the order is affirmed, without costs or disbursements. In a "confidential affirmation” submitted to the court in support of its application, former counsel for the plaintiffs argued that the legal action which it had commenced based on the plaintiffs’ allegations was, in effect, "not warranted under existing law” (Code of Professional Responsibility DR 2-110 [C] [1] [i] [22 NYCRR 1200.15 (c) (1) (i)]), and that its withdrawal as attorney for the plaintiffs could be accomplished "without material adverse effect on the interests of the client” (Code of Professional Responsibility DR 2-110 [C] [22 NYCRR 1200.15 (c)]). In opposition, the infant plaintiff’s father, who is an attorney, failed to adequately controvert these assertions, and, in prosecuting the present appeal, does little more than unjustifiably accuse former counsel of several ethical violations. Under the circumstances presented, we cannot conclude that the Supreme Court improvidently exercised its discretion in granting the application to withdraw (see generally, Wells v Community Hosp., 120 AD2d 584; Rindner v Cannon Mills, 127 Misc 2d 604; cf., LeMin v Central Suffolk Hosp., 169 AD2d 821; Cohen v Tzimus, 135 Misc 2d 335). Bracken, J. P., Pizzuto, Florio and McGinity, JJ., concur.