New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2006-015-137, Claim No. 112425, Motion Nos. M-72133, CM-72320


Claimant's motion for the assignment of counsel was denied. Defendant's cross-motion to dismiss the claim was granted as the State is not vicariously liable for the alleged conduct of a assistant district attorney

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 7, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for the assignment of counsel and a speedy trial is denied. The defendant's cross- motion to dismiss the claim for failure to meet the pleading requirements of Court of Claims Act § 11(b) is granted and the claim is dismissed. Claimant filed an unverified claim seeking unspecified damages on June 9, 2006. The claim alleges inter alia that "A.D.A. Frank Dudis prosecuted claimant for Grand Larceny 3rd degree, yet received indictment for 4th degree". The claimant alleges that as the result of this conduct the claimant was placed in a maximum security prison where he was beaten, robbed and extorted.

Motion No. M-72133

Citing to federal case law and the Magna Carta claimant moves for an order assigning an attorney to represent him on the claim and for a speedy trial[1]. Defendant opposes the motion on the grounds that: "Claimant has failed to attach to his motion papers certified records showing the amount of money in his inmate account, both at the present time and over the past three months; [c]laimant has not demonstrated that he has made any effort to obtain an attorney to handle the claim on a contingent fee basis; [t]he claim is not a complex matter which would warrant the Court's exercise of discretion by assigning an attorney; [c]laimant has not filed a certificate from an attorney stating that the attorney has examined the claim and believes that there is merit thereto, as the Court may require pursuant to CPLR § 1101(b); [t]he claimant has failed to serve the Kings County attorney (the Corporation Counsel) with the Notice of Motion and Affidavit in Support of his application to proceed as a poor person."

Claimant's application for the appointment of counsel must be denied. Claimant offered no proof that his application was served upon the appropriate county attorney as required by statute (CPLR 1101 [c]). Failure to serve a county attorney warrants denial of the relief requested (Sebastiano v State of New York, 92 AD2d 966; People v Calhoun, 2 Misc 3d 1009 (A); Harris v State of New York, 100 Misc 2d 1015). Moreover, the Court of Appeals has held that there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation of this nature (Matter of Smiley, 36 NY2d 433). Smiley has been interpreted for the proposition that courts should not routinely approve requests for the assignment of private counsel without compensation unless the litigation involves grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849, lv dismissed 93 NY2d 1000; Morgenthau v Garcia, 148 Misc 2d 900, 903). Claimant has failed to make such a showing and the motion for assignment of counsel is therefore denied.

Cross-Motion No. CM-72320

The defendant cross-moves to dismiss the complaint on the ground, inter alia, that the jurisdiction of the Court of Claims is limited to actions against the State, which is not vicariously liable for the conduct of an assistant district attorney. It is well settled that the State is not subject to liability for the actions of a district attorney because neither a district attorney nor an assistant district attorney is an officer or employee of the State (Fisher v State of New York, 10 NY2d 60; Fuller v State of New York, 11 AD3d 365). Inasmuch as claimant predicates his claim on the conduct of the assistant district attorney who prosecuted his criminal action, the Court of Claims has no jurisdiction (see, NY Const. art. VI, § 9; Court of Claims Act § 9[2]). Defendant's cross-motion to dismiss the claim is therefore granted.

December 7, 2006
Saratoga Springs, New York
Judge of the Court of Claims

The Court considered the following papers:
  1. Motion No. M-72133 Notice of motion dated May 15, 2006;
  2. Unsworn "Affidavit/Affirmation" dated May 15, 2006.

Cross-Motion No. CM-72320

  1. Notice of cross-motion dated September 25, 2006;
  2. Affirmation of Michael W. Friedman dated September 25, 2006 with exhibits.

[1].In a similar claim pending under claim number 112243, the claimant made identical arguments in support of this relief. The motion was denied by Decision and Order of this Court dated August 31, 2006.