New York State Court of Claims

New York State Court of Claims

ALSTON v. THE STATE OF NEW YORK, #2009-040-071, Claim No. 107860, Motion No. M-76774


Court’s Order to Show Cause why counsel should not be relieved pursuant to CPLR 321(b). counsel relieved as he has been suspended by First Department.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Bernstein & BernsteinBy: Marc A. Bernstein, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 17, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


By Order to Show Cause returnable on July 15, 2009 the Court noted that Claimant has attempted to dismiss his counsel, Bernstein & Bernstein by Marc A. Bernstein, Esq., on several occasions. Bernstein & Bernstein, by Marc A. Bernstein, Esq., was ordered to show cause why an order relieving counsel should not be made pursuant to CPLR 321(b).

This Claim was filed with the Clerk of the Court by Claimant, pro se, on June 11, 2003 and alleges Claimant did not receive adequate medical care for injuries he sustained on May 18, 2002 while incarcerated at Eastern Correctional Facility located in Napanoch, New York.

Thereafter, by Notice of Appearance filed with the Clerk of the Court on July 19, 2007, Bernstein & Bernstein appeared as counsel for Claimant, and the Claim was assigned to this Court. On September 10, 2007, the Court held a status conference with counsel for the parties by telephone and it was agreed that all discovery would be completed and Claimant’s counsel would serve and file a Note of Issue and Certificate of Readiness on or before March 10, 2008. Subsequently, the deadline was extended by consent of counsel and ordered by the Court three times, with the latest date being to March 1, 2009.

By letter dated July 9, 2008, Claimant informed the Court that he wanted his counsel “relieved from this case” and wanted to proceed pro se. By letter dated July 14, 2008, the Court advised Claimant of the statute and procedure to follow if he wished to change his legal counsel. The Court sent a copy of the letter to counsel of record.

By letter dated July 17, 2008, Mr. Bernstein advised Claimant of the status of his Claim and stated he had a copy of Claimant’s July 9, 2008 letter and the Court’s response thereto.

Mr. Alston again wrote the Court on February 9, 2009 regarding “removing [his] current attorney.” Mr. Alston stated he had written to Mr. Bernstein on several occasions and he had not heard from Mr. Bernstein. In response, the Court, by letter dated February 18, 2009, again advised Mr. Alston of the statute and procedure he would need to follow if he wished to change his legal counsel. The Court provided counsel with a copy of the correspondence.

Subsequently, on February 27, 2009, the Court received a copy of correspondence directed to Mr. Alston from Michael J. Collesano, Esq., dated February 23, 2009. Mr. Collesano advised Mr. Alston that he was formerly “of counsel” to Bernstein & Bernstein. He further advised Mr. Alston that Mr. Bernstein was no longer practicing law, that Mr. Collesano had Mr. Alston’s legal files, that he was unable to represent Mr. Alston, and that he would deliver the legal file to Mr. Alston, or an attorney of Mr. Alston’s choice, upon written instruction.

By letter dated March 16, 2009, Mr. Collesano sent Mr. Alston his legal file. The Court received a copy of the correspondence transmitting the same. By letter dated March 18, 2009, the Court advised Mr. Bernstein of the correspondence from Mr. Collesano. The Court noted the status of the Claim and the understanding that Mr. Bernstein “is still attorney of record as there is no indication that there has been a change or withdrawal of counsel pursuant to CPLR § 321(b) or removal or disability pursuant to § 321(c).”

Mr. Alston sent a letter to the Chief Clerk of the Court dated April 19, 2009 wherein, among other things, he indicated a desire to proceed pro se. In response, the Court again informed Mr. Alston (by letter dated April 24, 2009) of the statute and procedure to be followed if he wished to discharge his counsel.

On May 8, 2009, the Court received a copy of correspondence from Mr. Alston to Mr. Bernstein. Enclosed with the letter was a Consent to Change Attorney form signed by Mr. Alston. The letter requests that Mr. Bernstein sign the form.

The Court has not received any correspondence from anyone from the firm of Bernstein & Bernstein or from Mr. Bernstein in response to the Order to Show Cause.

The Court has conducted some research in an attempt to locate Mr. Bernstein. That research resulted in finding Matter of Bernstein (63 AD3d 87 [1st Dept 2009]). On April 23, 2009, the Appellate Division, First Department, indefinitely suspended Mr. Bernstein from the practice of law in New York.

Mr. Bernstein has not notified this Court of his suspension and it appears he has not notified Mr. Alston either. As Mr. Alston has indicated his desire to discharge Mr. Bernstein as his counsel and appear pro se, and, in light of Mr. Bernstein’s recent suspension from the practice of law, the Court deems Mr. Bernstein to be relieved from his duties as counsel to Mr. Alston effective this date. The Clerk of the Court is directed to amend its records accordingly and return this matter to the Prisoner Pro Se calendar.

The Court herewith returns to the Clerk’s office the State’s motion to dismiss in this Claim (Motion No. M-76727) that previously was adjourned sine die for reassignment.

August 17, 2009
Albany, New York

Judge of the Court of Claims