PETKOVSEK v. SNYDER (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Eleanor PETKOVSEK, Appellant, v. Joel D. SNYDER, Respondent. (Appeal No. 4.)

Decided: June 10, 1998

Before PINE, J.P., and HAYES, WISNER, PIGOTT and BOEHM, JJ.

Eleanor Petkovsek, Utica, for Petitioner-Appellant. John Speer, Little Falls, for Respondent-Respondent. James Huyck, Herkimer, for Law Guardian.

Petitioner failed to establish by a preponderance of the evidence that respondent committed a family offense as defined in Family Court Act § 812 (see, Matter of Finocchiaro v. Finocchiaro, 192 A.D.2d 1089, 598 N.Y.S.2d 754).

We reject the contention of petitioner that she was deprived of a fair trial by the refusal of Supreme Court to appoint new assigned counsel and grant an adjournment to enable her to subpoena witnesses. The court granted the request of petitioner, made at the commencement of the scheduled hearing, to release her assigned counsel, but refused to appoint new counsel. An indigent party's right to court-appointed counsel under the Family Court Act is not absolute (see, Matter of Child Welfare Admin. [John R.] v. Jennifer A., 218 A.D.2d 694, 696, 630 N.Y.S.2d 379, lv. denied 87 N.Y.2d 804, 640 N.Y.S.2d 877, 663 N.E.2d 919). “In order to have substitute counsel appointed, a party must establish that good cause for release existed necessitating dismissal of assigned counsel” (Matter of Mooney v. Mooney, 243 A.D.2d 840, 841, 663 N.Y.S.2d 676). The record supports the court's finding that petitioner failed to show good cause for counsel's release. Further, it was not an abuse of discretion to deny petitioner's request for an adjournment made on the day of the scheduled hearing (see, Matter of Mott v. Ransom [appeal No. 1], 210 A.D.2d 929, 621 N.Y.S.2d 987).

Nor did the court abuse its discretion in denying petitioner's motion for recusal (see, People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200). The motion was based solely on the fact that the Trial Judge had not previously ruled in petitioner's favor. “Where, as here, there is no allegation that recusal is statutorily required (see, Judiciary Law § 14), the matter of recusal is addressed to the discretion and personal conscience of the Justice whose recusal is sought” (Matter of Card v. Siragusa, 214 A.D.2d 1022, 1023, 626 N.Y.S.2d 336).

Order unanimously affirmed without costs.

MEMORANDUM:

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