| Planck v County of Schenectady |
| 2008 NY Slip Op 04574 [51 AD3d 1283] |
| May 22, 2008 |
| Appellate Division, Third Department |
| Jason Planck, Appellant, v County of Schenectady, Defendant.(Action No. 1.) Jason Planck, Appellant, v State University of New York Board ofTrustees et al., Defendants, and Schenectady County Community College, Respondent. (ActionNo. 2.) |
—[*1] McCary & Huff, L.L.P., Scotia (Kathryn McCary of counsel), for Schenectady CountyCommunity College, respondent.
Spain, J. Appeal from an order of the Supreme Court (Hoye, J.), entered March 7, 2007 inSchenectady County, which denied plaintiff's motion for appointment of assigned counsel.[*2]
Plaintiff has previously been before this Court twice in anaction against the various defendants regarding his dismissal as a student from defendantSchenectady County Community College (Planck v County of Schenectady, 29 AD3d 1053 [2006], lvdismissed 7 NY3d 783 [2006], cert denied 549 US —, 127 S Ct 675 [2006];Planck v SUNY Bd. of Trustees, 18AD3d 988 [2005], lv dismissed and denied 5 NY3d 844 [2005]). In 2005, plaintiffcommenced a second action against all of the defendants named in the first action. In February2007, plaintiff brought, under both actions, the instant motion in Supreme Court seeking theassignment of counsel in order to litigate the underlying actions. Supreme Court denied hismotion and plaintiff appeals.
We affirm. Generally, in a civil action "there is no absolute right to assigned counsel;whether in a particular case counsel shall be assigned lies instead in the discretion of the court"(Matter of Smiley, 36 NY2d 433, 438 [1975]). Supreme Court properly concluded thatplaintiff's complaints do not implicate the liberty interests that have been found to meritassignment of counsel in civil cases (see generally Rivers v Katz, 67 NY2d 485 [1986];Matter of Smiley, 36 NY2d 433 [1975]; Matter of Ella B., 30 NY2d 352 [1972]),and we find that Supreme Court did not abuse its discretion in declining to assign counsel(see CPLR 1102 [a]; Lloyd vCatholic Charities of Diocese of Albany, 23 AD3d 783, 784 [2005]). Inasmuch asplaintiff's motion was clearly inadequate on its face to rule on the issue,[FN*]his claim that assigned counsel was required under the Americans with Disabilities Act of 1990(see 42 USCA § 12131 et seq.) was also properly denied.
Cardona, P.J., Carpinello, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Among other inadequacies,plaintiff's motion failed to state what his disability is or how, by reason of his disability, he hasbeen "excluded from participation in or [has been] denied the benefits of the services, programsor activities of" Supreme Court (42 USC § 12132).