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Planck v. Schenectady

Appellate Division of the Supreme Court of New York, Third Department
May 22, 2008
51 A.D.3d 1283 (N.Y. App. Div. 2008)

Opinion

No. 502283.

May 22, 2008.

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

Jason Planck, Schenectady, appellant pro se.

McCary Huff, L.L.P., Scotia (Kathryn McCary of counsel), for Schenectady County Community College, respondent.

Before: Cardona, P.J., Carpinello, Malone Jr. and Kavanagh, JJ.


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 AD3d 1053, lv dismissed 7 NY3d 783, cert denied 549 US ___, 127 S Ct 675; Planck v SUNY Bd. of Trustees, 18 AD3d 988, lv dismissed and denied 5 NY3d 844). 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 NY2d 433, 438). Supreme Court properly concluded that plaintiffs 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 NY2d 485; Matter of Smiley, 36 NY2d 433; Matter of Ella B., 30 NY2d 352), 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 AD3d 783, 784). Inasmuch as plaintiff's motion was clearly inadequate on its face to rule on the issue, 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.

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).

Ordered that the order is affirmed, without costs.


Summaries of

Planck v. Schenectady

Appellate Division of the Supreme Court of New York, Third Department
May 22, 2008
51 A.D.3d 1283 (N.Y. App. Div. 2008)
Case details for

Planck v. Schenectady

Case Details

Full title:JASON PLANCK, Appellant, v. COUNTY OF SCHENECTADY, Defendant. (Action No…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 22, 2008

Citations

51 A.D.3d 1283 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 4574
858 N.Y.S.2d 824

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