New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2007-044-583, Claim No. 112504, Motion Nos. M-73774, M-73818


Claimant's motion to compel prison guards to sign affidavits stating that no assault upon claimant occurred on a particular day, time and location would be denied even if it did not suffer from various procedural defects, as the demand was essentially a notice to admit one of the ultimate issues for determination in the litigation. Claimant's motion to reargue prior discovery motion in same claim also 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):
M-73774, M-73818
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:
November 19, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim against defendant State of New York (defendant) alleging that on April 8, 2005, unknown correction officers used excessive force against him during a strip search in the draft room at Elmira Correctional Facility (Elmira).

Claimant now makes two motions concerning discovery (Motion Nos. M-73774 and M-73818), in addition to the numerous other motions that he has made regarding this claim. The motions are addressed individually below. However, a brief procedural history of this claim is necessary before these motions can be resolved.

Claimant previously moved (Motion No. M-72699) to compel defendant to provide photographs of five named correction officers. Because claimant failed to include an affidavit in support of his motion, the Court allowed additional time for claimant to submit a supporting affidavit detailing the basis for claimant’s request for photographs of those particular individuals (Pettus v State of New York, Ct Cl, Mar. 21, 2007, Schaewe, J., Claim No. 112504, Motion No. M-72699).[1] Claimant, however, failed to submit an appropriate supporting affidavit within the time provided, and the motion was denied without further order of the Court (id.; Pettus v State of New York, Ct Cl, July 10, 2007, Schaewe, J., Claim No. 112504, Motion No. M-73405).

Claimant also recently moved (Motion No. M-73624) to compel defendant to interview the five correction officers who were working in the draft room at Elmira on April 8, 2005 to obtain affidavits stating that he had not been assaulted on that date. The Court recently denied that motion as premature based upon claimant’s failure to make an appropriate discovery demand before moving to compel compliance with said demand (Pettus v State of New York, Ct Cl, Nov. 7, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73404, M-73624, M-73626; Cross Motion No. CM-73630).
MOTION NO. M-73774
Claimant now moves for “re-consideration re-argument” to compel defendant to forward photographs of five correction officers who worked in the draft room on the day of the alleged assault, so that he may determine which correction officer assaulted him. Defendant opposes the motion, arguing that claimant failed to meet the standards of either a motion to renew or a motion to reargue.

As defendant correctly notes, claimant has neither set forth facts not previously available on the prior motion nor established that there has been a change in the law which would justify a motion to renew (CPLR 2221 [e]). Further, claimant has failed to establish that the Court misapprehended the facts or misapplied the controlling law in order to support a motion for reargument (CPLR 2221 [d]). In fact, claimant makes no reference to the prior motion itself or the Court’s decision on that motion. Accordingly, to the extent that claimant’s motion seeks reargument or renewal, it is denied.

To the extent that Motion No. M-73774 might be construed as an independent motion to compel, it too would be denied. Claimant made no discovery demand prior to making the motion to compel disclosure, and the motion is therefore premature (see CPLR 3124). However, to the extent that Motion No. M-73774 may be considered an initial request for discovery, it is the functional equivalent of a demand to produce under CPLR 3102 (a). Accordingly, defendant is hereby granted 20 days from the date of filing of this Decision and Order in which to respond to the demand.[2]
MOTION NO. M-73818
In his notice of motion dated July 27, 2007, claimant requests that defendant be compelled to submit “ ‘signed affidavits’ that an assault ‘did-not’ occur in the draft room [at] Elmira Corr Facility on April 08, 2005 between 8:30 - 12:00 by one (1) of the five [correction officers] who worked on that day in draft room.” Defendant has not responded to the motion.[3]

As previously set forth in this Decision and Order, claimant made a prior motion (Motion No. M-73624), which was returnable on July 25, 2007, seeking the identical relief. The instant motion suffers from the same defect as Motion No. M-73624. Because claimant made no discovery demand prior to making this motion to compel disclosure (see CPLR 3124; Pettus v State of New York, Ct Cl, Nov. 7, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73404, M-73624, M-73626; Cross Motion No. CM-73630, supra), this motion is premature and could be denied solely on that basis. Moreover, to the extent that the motion might be considered an initial request for discovery, it is not a statutorily authorized device for obtaining disclosure (see CPLR 3102 [a]). Furthermore, this demand would be most akin to a notice to admit which would be improper as the subject matter (that claimant was not assaulted) is an ultimate issue for determination in this litigation (see Spawton v James E. Strates Shows, 75 Misc 2d 813, 814 [1973]; see also Glasser v City of New York, 265 AD2d 526 [1999]; Howlan v Rosol, 139 AD2d 799 [1988]). Accordingly, claimant’s Motion No. M-73818 to compel execution and production of affidavits from the five correction officers is denied.

Finally, this motion is a highly inappropriate misuse of the judicial system. While Motion No. M-73624 had been pending for only two days, claimant made this Motion No. M-73818 for the exact same relief. Claimant has previously been warned that his conduct in making repetitive motions in the same claim for relief which had already been denied may be potentially frivolous and may subject him to sanctions. Claimant is strongly advised that this Court will not tolerate similar conduct on motions filed after this date and may consider instituting an application for sanctions, sua sponte.

Claimant’s Motion Nos. M-73774 and M-73818 are denied in their entirety.

November 19, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motions:

1) Notice of Motion (Motion No. M-73774) filed on July 25, 2007; Affidavit/Affirmation of James Pettus sworn to on July 23, 2007.

2) Affirmation in Opposition of Roberto Barbosa, AAG, dated August 20, 2007.

3) Notice of Motion (Motion No. M-73818) filed on August 6, 2007; Affidavit/Affirmation of James Pettus sworn to on July 31, 2007.

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

[1]. Although the alleged perpetrators of the assault were initially unknown to him, claimant remarkably provided the names of five correction officers in his demand for their photographs. Claimant has yet to explain to the Court how he determined the names.
[2]. The Court anticipates that defendant will refuse to produce the photographs, raising security concerns as a reason for not providing claimant with photographs of the correction officers. The Court appreciates the security risks associated with placing photographs in the hands of an inmate, and is not inclined to order such production. However, the Court requests that the Attorney General’s Office address whether any security concerns would be present if claimant were shown a photo array which included photographs of the five officers working in the draft room on the day of the alleged assault, among any other photographs deemed appropriate by defendant.
[3]. It appears that the Assistant Attorney General assigned to this claim mistakenly believed that the Clerk of the Court notifies the parties by letter of the return date for all motions. In fact, notification of a return date is not provided when the notice of motion contains the correct return date, as the notice does in this instance.