
    James D’AMATO, Plaintiff-Appellant, v. John BRAY, Defendant-Appellee.
    Docket No. 03-7610.
    United States Court of Appeals, Second Circuit.
    Dec. 16, 2003.
    
      James D’Amato, Inverness, FL, for Appellant, pro se.
    Matthew K. Flanagan, L’Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY, for Appellee.
    PRESENT: WALKER, Chief Judge, KEARSE, and CABRANES, Circuit Judges.
   SUMMARY ORDER

Pro se plaintiff-appellant James D’Ama-to appeals from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) dismissing sua sponte his amended complaint against John Bray, his former lawyer, for ineffective assistance of counsel and legal malpractice. We affirm.

Judge Seybert properly dismissed the constitutional ineffective assistance claim because Bray was not acting under color of law during his representation of D’Amato. See Polk County v. Dodson, 454 U.S. 312, 318-23, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir.1975). Moreover, D’Amato cannot assert a cognizable malpractice claim under New York law so long as his conviction stands. See Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 718 N.Y.S.2d 264, 267, 741 N.E.2d 109 (2000); Carmel v. Lunney, 70 N.Y.2d 169, 518 N.Y.S.2d 605, 607, 511 N.E.2d 1126 (1987).

On appeal, D’Amato also raises a litany of grievances against Judge Seybert. We find these claims to be without merit.

For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.  