PLANCK v. COUNTY OF SCHENECTADY (2008)

Appeal from an order of the Supreme Court (Hoye, J.), entered March 7, 2007 in Schenectady County, which denied plaintiff's motion for appointment of assigned counsel.

Plaintiff has previously been before this Court twice in an action against the various defendants regarding his dismissal as a student from defendant Schenectady County Community College (Planck v. County of Schenectady, 29 A.D.3d 1053, 814 N.Y.S.2d 374 [2006], lv. dismissed 7 N.Y.3d 783, 820 N.Y.S.2d 545, 853 N.E.2d 1113 [2006], cert. denied 549 U.S. 1059, 127 S.Ct. 675, 166 L.Ed.2d 527 [2006];  Planck v. SUNY Bd. of Trustees, 18 A.D.3d 988, 795 N.Y.S.2d 147 [2005], lv. dismissed and denied 5 N.Y.3d 844, 805 N.Y.S.2d 545, 839 N.E.2d 899 [2005] ).   In 2005, plaintiff commenced a second action against all of the defendants named in the first action.   In February 2007, plaintiff brought, under both actions, the instant motion in Supreme Court seeking the assignment of counsel in order to litigate the underlying actions.   Supreme Court denied his motion 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 N.Y.2d 433, 438, 369 N.Y.S.2d 87, 330 N.E.2d 53 [1975] ).   Supreme Court properly concluded that plaintiff's complaints do not implicate the liberty interests that have been found to merit assignment of counsel in civil cases (see generally Rivers v. Katz, 67 N.Y.2d 485, 504 N.Y.S.2d 74, 495 N.E.2d 337 [1986];  Matter of Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53;  Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 [1972] ), and we find that Supreme Court did not abuse its discretion in declining to assign counsel (see CPLR 1102[a];  Lloyd v. Catholic Charities of Diocese of Albany, 23 A.D.3d 783, 784, 803 N.Y.S.2d 739 [2005] ).   Inasmuch as plaintiff's motion was clearly inadequate on its face to rule on the issue,¹ 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.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   Among other inadequacies, plaintiff's motion failed to state what his disability is or how, by reason of his disability, he has been “excluded from participation in or [has been] denied the benefits of the services, programs or activities of” Supreme Court (42 USC § 12132).

SPAIN, J.

CARDONA, P.J., CARPINELLO, MALONE JR. and KAVANAGH, JJ., concur.