New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2006-028-579, Claim No. 109717, Motion No. M-71735


Claimant's motion for appointment of counsel, the scheduling of a pre-trial conference, and to amend Claim with exhibits are all denied.

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:
Defendant’s attorney:
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were considered by the Court:

1. Notice of Motion and "Affidavit/Affirmation" in Support of James Pettus, pro se, filed May 8, 2006 with annexed Exhibits; and

2. Affirmation in Opposition of Joseph F. Romani, AAG filed June 15, 2006.

Filed Papers: Verified Claim filed August 11, 2004; Verified Answer filed September 22, 2004; Order, Sise, P.J., filed August 18, 2004.

Claimant seeks various types of relief by way of this single motion including the scheduling of a pre-trial conference for settlement purposes, appointment of counsel, the scheduling of a trial date, and "[t]o incorporate the attached documents by reference" (Notice of Motion).

The underlying Claim alleges that personnel at Southport Correctional Facility improperly opened Claimant's legal mail without his permission and outside his presence and confiscated a check sent to him by the Department of Finance.

Claimant seeks the appointment of counsel to assist him in litigating this Claim. An Order has previously been issued reducing the filing fee for this Claimant to $25.00 (Pettus v State of New York, Ct Cl, August 18, 2004, Sise, P.J., Claim No. 109717).

CPLR § 1101 (c) requires that "notice shall also be given to the county attorney in the county in which the action is triable...." This requirement is significant because the payment of the witness fees, and the other privileges of a poor person, may be a county charge (CPLR § 1102). Failure to comply with this section renders an application defective (Sebastiano v State of New York, 92 AD2d 966 [1983]). There is no proof whatsoever that the appropriate county attorney's office has been served with the moving papers. As such, Claimant has failed to comply with the requirements of the statute, making his application defective. The Court therefore denies the instant application for the appointment of counsel.

Even if the Court were to countenance the failure to serve the county attorney, the application would nevertheless be denied. The assignment of counsel in civil matters is discretionary (Matter of Smiley, 36 NY2d 433, 438 [1975]). Generally, counsel will not routinely be assigned except in a proper case, such as one involving grievous forfeiture or loss of a fundamental right (Wills v City of Troy, 258 AD2d 849 [1999], lv dismissed 93 NY2d 1000 [1999]; Morgenthau v Garcia, 148 Misc 2d 900, 903 [1990]). A review of the pleadings in this case reveals that this Claim fails to rise to the level warranting assignment of counsel.

Inasmuch as the filing fee has been addressed, the prosecution of this matter in this Court does not require the Claimant to pay any costs or fees. To the extent Claimant must mail pleadings to the Court and the Defendant, Claimant is entitled to limited free postage on a weekly basis and advances for legal mail postage, if he has insufficient funds (Robbins v State of New York, Ct Cl, January 9, 2001, NeMoyer, J., Claim No. 102325, Motion No. M-62803 [UID No. 2000-006-962]).[1]

Next, Claimant seeks the scheduling of a pre-trial conference to discuss settlement, prepare a discovery schedule, and/or schedule a trial date. Claimant's request will be denied in its entirety. Preliminary conferences are not mandated in prisoner pro se claims and the Court declines to direct a conference in this matter (22 NYCRR § 206.10 [a]). With respect to Claimant's request for assistance in settling his Claim, the State's opposing papers indicate it is taking a no liability posture in this matter and has no reason to engage in settlement discussions. Nevertheless, Claimant is free to contact Defendant on his own to attempt settlement negotiations, but the Court will not participate in such discussions. Nor will the Court prepare a discovery schedule for the parties. Rather, the parties should proceed with discovery in accordance with the CPLR. Finally, with respect to Claimant's request for a trial date, the scheduling of prisoner pro se claims fall within the discretion of the Court and this matter, as with all Claims, will be scheduled as soon as practicable (22 NYCRR § 206.13).

The final portion of Claimant's motion seeks an Order "[t]o incorporate the attached documents by reference..." (Notice of Motion). The Court will deem this portion of Claimant's motion as seeking permission to amend his Claim. However, Claimant does not seek to amend his Claim in the conventional sense, but rather requests permission to submit voluminous records as an exhibit to his Claim. There is no requirement that Claimant submit each and every piece of potential trial evidence as an exhibit to his Claim. In this Court's view, this is exactly what Claimant is attempting to do. To the extent that Claimant believes that these documents are material and relevant, these are issues that are best left for trial regarding admissibility and/or weight of the purported evidence. In any event, Claimant has not articulated, nor has this Court found, any meritorious reason necessitating the submission of these documents as part of the Claim itself. Claimant's motion to amend his Claim by attaching various records thereto is denied.

In sum, Claimant's Motion, M-71735, is DENIED in its entirety.

July 27, 2006
Albany, New York

Judge of the Court of Claims

[1].Selected unreported decisions from the Court of Claims are available via the Internet at