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
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
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 §
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
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
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.