New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-015-244, Claim No. 113892, Motion Nos. M-73762, M-73788


Claim arising out of conduct of Assistant District Attorney was dismissed. State is not vicariously liable for the conduct of an 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):
M-73762, M-73788
Cross-motion number(s):

Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant moves (M-73762) to dismiss this claim on the ground, inter alia, that an Assistant District Attorney is not a State officer for whose tortious conduct the State may be held liable. For the reasons which follow, the motion is granted. As a result, the claimant's motion (M-73788) for the assignment of counsel is denied as moot. This claim arises out of the same circumstances set forth in Claim number 112425 and alleges in relevant part the following:
I am suing the [state] because of the actions of A.D.A. Frank Dudis who prosecuted plaintiff for third degree when the grand jury panel voted to indict for fourth degree [thereby] prosecuting plaintiff without authority from grand jury [thereby] causing my person to be placed in the care -custody- and control of [D.O.C] wherein my person is being detained illegally under the care-custody- and control of [DOC]. Plaintiff was placed into a maximum-security prison as a non-violent inmate causing plaintiff to be beaten robbed, extorted, assaulted and sexually harassed incessantly. Causing psychological injury. Further plaintiff has received improper and inadequate medical attention, which is on-going and current causing needless and unnecessary pain and suffering . . . .

Claim number 112425 similarly alleged that "A.D.A. Frank Dudis prosecuted claimant for Grand Larceny 3rd degree, yet received indictment for 4th degree". The claimant alleged in that action, as he does here, that as a result of the conduct of the Assistant District Attorney the claimant was placed in a maximum security prison where he was beaten, robbed and extorted. The prior claim was dismissed because, as stated in the decision:
[T]he 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 (Pettus v State of New York, Ct Cl, December 7, 2006 [Claim No. 112425, Motion M-72133, CM-72320] Collins, J., unreported, citing Fisher v State of New York, 10 NY2d 60 [1961]; Fuller v State of New York, 11 AD3d 365 [2004]).

To the extent this claim is premised upon the conduct of Assistant District Attorney Dudis it is subject to dismissal[1]. To the extent the claim makes fleeting mention of the defendant's alleged failure to provide adequate medical attention, it fails to meet the pleading requirements of Court of Claims Act § 11 (b) which requires that a claim "shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed". The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . .". (Lepkowski v State of New York, 1 NY3d 201 [2003], quoting Heisler v State of New York, 78 AD2d 767, 767 [1980]). Here, the general allegation of a failure to provide adequate medical treatment falls far short of the applicable pleading requirements.

For the foregoing reasons the defendant's motion to dismiss this claim is granted and the claim is dismissed. The claimant's motion for the assignment of counsel is denied as moot.

October 17, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-73762
  1. Notice of motion dated July 19, 2007;
  2. Affirmation of Roberto Barbosa dated July 19, 2007 with exhibits;

Motion No. M-73788

  1. Notice of motion dated April 16, 2007;
  2. Affidavit/Affirmation of James Pettus sworn to April 17, 2007;
  3. Affirmation of Roberto Barbosa dated August 14, 2007.

[1]. This claim is also subject to dismissal on the ground of res judicata (see generally Parker v Blauvelt Volunteer Fire Co., Inc., (93 NY2d 343, 347-348 [1999]).