Treistman v. Wacks, Esq. et al

Filing 13

ORDER - ORDERED that the parties shall file briefs of five (5) pages or less and any supporting affidavits, declarations, or exhibits by Thursday, February 21, 2013 specifically addressing A.T.'s age and place of domicile, and any other matters they deem relevant to Treistmans purported representation of A.T. ORDERED that the application for an order to show cause (Dkt. No. 12) is STAYED. Signed by Chief Judge Gary L. Sharpe on 2/7/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BEN GARY TREISTMAN,
Plaintiff,

1:12-cv-1897
(GLS/CFH)

v.
VALERIE LYN WACKS, ESQ. et
al.,
Defendants.
________________________________
ORDER
Pending before the court is an application for an order to show cause
filed by plaintiff pro se Ben Gary Treistman, individually and as “[p]arent
and [n]ext [f]riend for” A.T. (See Dkt. No. 12; Compl., Dkt. No. 1.) Before
that application may be considered, however, the court must resolve an
issue regarding Treistman’s purported representation of A.T.1 See Cheung
v.Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)
(“[N]o issues concerning th[e] litigation should be decided until the counsel
issue is resolved.”). The Complaint indicates that Treistman and A.T. are
suing in their individual capacities; Treistman also purports to bring the

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The court notes that this issue may be raised sua sponte. See
Oltremari ex rel. McDaniel v. Kan. Soc. & Rehab. Serv., 871 F. Supp.
1331, 1332 (D. Kan. 1994).

action as parent and next friend of A.T. as mentioned above. (See
generally Compl.)
Although sufficient facts—including A.T.’s age and place of
domicile—are not now before the court to fully address the issue, it is clear
that “[a] minor or incompetent person normally lacks the capacity to bring
suit for h[er]self,” and that a next friend cannot represent a minor or
incompetent person without an attorney to conduct the litigation. Berrios v.
N.Y.C. Hous. Auth., 564 F.3d 130, 134 (2d Cir. 2009). In light of the
foregoing, the parties shall file briefs of five (5) pages or less and any
supporting affidavits, declarations, or exhibits by Thursday, February 21,
2013 specifically addressing A.T.’s age and place of domicile, and any
other matters they deem relevant to Treistman’s purported representation
of A.T. Because the litigation cannot proceed until this issue is resolved,
the application for an order to show cause is stayed.
ACCORDINGLY, it is hereby
ORDERED that the parties shall file briefs of five (5) pages or less
and any supporting affidavits, declarations, or exhibits by Thursday,
February 21, 2013 specifically addressing A.T.’s age and place of domicile,
and any other matters they deem relevant to Treistman’s purported
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representation of A.T.; and it is further
ORDERED that the application for an order to show cause (Dkt. No.
12) is STAYED; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties.
IT IS SO ORDERED.
February 7, 2013
Albany, New York

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