New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-015-235, Claim No. 112647, Motion Nos. M-73560, M-73559, CM-73629


Synopsis


Claim was dismissed for failure to serve the Attorney General.

Case Information

UID:
2007-015-235
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112647
Motion number(s):
M-73560, M-73559
Cross-motion number(s):
CM-73629
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves in one motion for the appointment of counsel and a "speedy trial" (M-73560) and in a second motion to compel the defendant to provide the "Grand Jury Voting Sheet" (M-73559) pertaining to the criminal charges for which he was convicted. The defendant cross- moves (CM-73629) for dismissal pursuant to CPLR 3211(a)(2) and (8) on the ground that the claim was not served upon the Attorney General as required by Court of Claims Act § § 10 (3) and 11 (a).


Claimant filed a claim on August 16, 2006 in which he alleges that his incarceration was wrongful based upon the following conduct of an Assistant District Attorney:
1) PROSECUTED PLAINTIFF FOR OFFENSE COMMITTED IN BRONX COUNTY,

2) OBTAINED INDICTMENT FOR FILING FALSE INSTRUMENT 2N DEGREE, YET TRIED PLAINTIFF FOR FIRST DEGREE,

3) UPON OBTAINING INDICTMENT, ISSUED BENCH WARRANT, AS OPPOSED TO WARRANT OF ARREST, CAUSING MY PERSON TO BE PLACED IN A STATE GOVERNMENTAL ENTITY [D.O.C.] WHERE INJURIES AND DAMAGES OCCURRED.

Defendant's cross-motion to dismiss the claim will be addressed first. Defendant's cross-motion is supported by an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer avers that she searched the electronic database maintained by the Attorney General's office and found no record that this claim was served upon the Attorney General. In opposition to the defendant's cross-motion the claimant states, "THE ATTORNEY IS [A]BSOLUTELY CORRECT. I FORWARDED TO THE SUPREME COURT BY [MISTAKE]". Claimant requests that this Court order the Clerk to forward a copy of the claim to the defendant. Court of Claims Act § 11(a)(i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . ." These requirements are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 687 [2000]). Claimant's failure to serve the claim upon the Attorney General requires dismissal.

Accordingly, the defendant's cross-motion (CM-73629) to dismiss the claim is granted and the claim is dismissed. The claimant's motions (M-73560 and M-73559) are denied as moot.


October 1, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims

Motion No. M-73560, CM-73629

  1. Notice of motion dated April 16, 2007;
  2. Affidavit/Affirmation of James Pettus sworn to April 17, 2007 with exhibits;
  3. Notice of cross-motion dated June 14, 2007;
  4. Affirmation of Paul F. Cagino dated June 14, 2007 with exhibits;
  5. Affidavit of James Pettus sworn to June 19, 2007 with exhibit;

Motion No. M-73559

  1. Notice of motion dated June 4, 2007;
  2. Affidavit/Affirmation of James Pettus sworn to June 5, 2007 with exhibits.