New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-547, Claim No. 112504, Motion Nos. M-73126, M-73240


Claimant's motions for assigned counsel, a speedy [jury] trial and an increase of the ad damnum clauses of his claim were all denied by the Court

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-73126, M-73240
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 4, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, makes two separate motions regarding the same claim. The first motion (Motion No. M-73126) requests assignment of counsel and further seeks to increase the ad damnum clause from $100,000 to $1,000,000. The second motion (Motion No. M-73240) also requests assignment of counsel, and further requests “a [jury] trial [speedy].”
First taking up the issue of assignment of counsel raised in both motions, claimant contends that an appointed attorney is necessary to “navigate a fair trial” and conduct an investigation, and further to subpoena expert witnesses. In support of his motion, claimant submits numerous letters from various attorneys and law firms indicating their inability to represent claimant in this matter. Defendant opposes the motion on the grounds, among others, that claimant has neither submitted certified records showing the amount of money in his inmate account, nor is this a complex matter warranting an exercise of the Court's discretion to appoint an attorney. Defendant further notes that claimant has failed to serve the appropriate County Attorney with the motion papers, as required under CPLR 1101 (c).

Claimant seeks the assignment of an attorney who would apparently serve without compensation. There is no constitutional or statutory authority for the assignment or compensation of counsel under these circumstances (see Matter of Smiley, 36 NY2d 433 [1975]). Rather, the assignment of counsel in civil matters is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (Hines v State of New York, Ct Cl, June 21, 2005, Sise, P.J., Claim No. 110624, Motion No. M-69991 [UID # 2005-028-534]). The allegations made in this claim for personal injuries caused by excessive force are clearly of the nature that would typically be handled by an attorney on a contingent fee basis. The Court finds that this claim does not warrant the exercise of its discretion to assign counsel (see Matter of Smiley, supra).

Moreover, claimant's failure to file proof of service of his motion on the appropriate County Attorney's Office must also be fatal to his request. CPLR 1101 (c) requires that “if an action has already been commenced, notice of the motion shall be served on all parties, and notice shall also be given to the [C]ounty [A]ttorney in the county in which the action is triable.” Notice to the County Attorney is required because certain costs such as filing or transcription fees may be a county charge (see CPLR 1102). Failure to comply with the notice requirement renders an application defective (Sebastiano v State of New York, 92 AD2d 966 [1983]; Harris v State of New York, 100 Misc 2d 1015, 1016 [1979]), and would warrant denial in and of itself.
Claimant's second request in Motion No. M-73126 is to amend the ad damnum clause from $100,000 to $1,000,000. Claimant previously requested, in Motion No. M-72671, to amend the ad damnum clause from $100,000 to $5,000,000. In a decision and order dated March 7, 2007 (Pettus v State of New York, Ct Cl, Mar. 7, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72671), the Court denied claimant's motion without prejudice, noting that claimant provided no affidavit in support of the motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims § 206.8 (a), and further advising that a party seeking to increase the damages requested must submit proof supporting the increase in evidentiary form (see Thibeault v Palma, 266 AD2d 616, 618 [1999]).

In this subsequent motion for the same relief, claimant has submitted a brief affidavit which merely sets forth his conclusory allegations that he was mistreated by prison officials at Southport Correctional Facility. He also submits various facility records, including grievances, medical records, screening forms, memoranda from facility officials, and several “Memorandum[s] of Law” comprised of lengthy dissertations and quotes of case law on various legal topics pertaining to prisoners, such as indifference to their medical needs, emotional distress, and their right to be protected from harm. None of the records provide any indication that claimant has suffered additional injuries or damages since the filing of the claim which are over and above any which may have been received in the alleged incident. In fact, all the medical records submitted are from prior to the incident itself, except one “Sick Slip” which simply requests no program activities for 90 days. None of the other documentation provides any appropriate basis upon which a grant of claimant’s motion might be made, and claimant’s “Memorandums” are simply rambling documents with few, if any, relevant facts contained therein, and certainly stating nothing which might justify an increase in the ad damnum clause.
The Court notes that claimant previously made a motion (Motion No. M-72997) in this claim requesting a “speedy trial.” By decision and order dated May 11, 2007 (Pettus v State of New York, Ct Cl, May 11, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72997), the Court denied claimant's request on the grounds that the constitutional right to a speedy trial does not apply (see Matter of Reed v New York State Dept. of Motor Vehs., 59 AD2d 974 [1977]), that scheduling of pro se prisoner claims lies within the discretion of the Court, and further noting that the claim does not satisfy the requirements of CPLR 3403 (a) regarding trial preferences. Moreover, the Court noted that there is no right to a jury trial in the Court of Claims (Court of Claims Act § 12 [3]; Graham v Stillman, 100 AD2d 893 [1984]).

Based on the foregoing, claimant's Motion No. M-73126 requesting assignment of counsel and permission to amend the ad damnum clause is denied, and Motion No. M-73240 also requesting assignment of counsel and a “[jury] trial [speedy]” is denied as well.

June 4, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motions:

1) Notice of Motion for assignment of counsel and to increase the ad damnum clause filed on March 23, 2007 (Motion No. M-73126); “Affidavit/Affirmation” of James Pettus sworn to on March 22, 2007, and attached exhibits.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated April 25, 2007.

3) Notice of Motion for appointment of counsel and for “a [jury] trial” filed on April 20, 2007 (Motion No. M-73240); “Affidavit/Affirmation” of James Pettus sworn to on April 17, 2007, and attached exhibits.

4) Affirmation in Opposition of Roberto Barbosa, AAG, dated May 7, 2007, and attached Exhibits A through D.
5) Additional Notice of Motion for appointment of counsel and for “a [jury] trial [speedy]” received on May 8, 2007; “Affidavit/Affirmation” of James Pettus sworn to on April 17, 2007, and attached exhibits.

Filed papers: Claim filed on July 6, 2006; Verified Answer filed on July 21, 2006.