New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-007, Claim No. 113704, Motion Nos. M-74154, CM-74201


Pro-se inmate's motion for summary judgment was denied and defendant's cross-motion to dismiss claim as untimely was denied as this defense was waived. Once the defense is waived amendment of the answer is futile.

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:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate pro se, moves for summary judgment (M-74154) and the defendant cross-moves to dismiss the claim as untimely (CM-74201). As no defense with respect to the timeliness of the claim was asserted in the defendant's answer, the defendant also requests that "the defense of untimeliness be allowed as a defense to this claim nunc pro tunc, or in the alternative, that defendant be allowed to amend its answer nunc pro tunc to provide the defense of untimeliness based on claimant's misrepresentation of the actual accrual date of the claim." For the reasons which follow, both motions are denied. Paragraph "4" of the claim sets forth an accrual date of April 18, 2007 and paragraph "2" of the claim states the following:
Petitioner who is non-violent was placed in a maximum security prison. . . . with hostile, aggressive, anti-social and violent inmates, who would beat, assault, rob, extort, and sexually harass [incessantly] which is on-going and, current. Then petitioner was [single-out] willfully, purposefully. . . with 'intent' to cause psychological torment and torture. By the placement into special confinement [SHU] without ever committing serious offense of Tier III. . . . Plaintiff was placed into [SHU] Southport, for [correspondence] and improperly spreading his butt cheek's when in fact, such an order/direction is [unconstitutional] on its face. . . . Causing plaintiff [health] [safety], [well-being] to degenerate to the point of permanent damage [both] psychologically and physically, where officials have placed plaintiff in [medical restriction status] and [M.P.U.] which means plaintiff is [medically] and [psychologically] unable to program. . . . causing a cruel and unusual environment of [tortment] (sic) and [torture] against a non-violent inmate, for no other reason than the [hue] in plaintiff pigmentation (claim ¶ 2 [brackets in original]) .
Claimant's motion for summary judgment must be denied on both procedural and substantive grounds. CPLR 3212 (b) provides that "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof. . ." . Claimant not only failed to submit copies of the pleadings, he failed to make a prima facie showing of entitlement to judgment as a matter of law through the tender of evidence sufficient to establish the absence of material issues of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). " '[S]ummary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). Claimant failed to establish his entitlement to summary judgment and his motion is therefore denied.

Defendant's cross-motion for dismissal of the claim as untimely or for permission to amend its answer to assert a defense that the claim was untimely must also be denied. The claim was filed on May 14, 2007 and, according to the defendant, properly served on May 16, 2007. The answer served on June 19, 2007 failed to set forth a defense alleging the claim was untimely served and/or filed. Subdivision (c) of section 11 of the Court of Claims Act provides that a defense based upon the time limitations of Court of Claims Act § 10 is waived unless asserted in an answer or a pre-answer motion to dismiss. In Knight v State of New York, (177 Misc 2d 181 [Ct Cl 1998]) this Court previously observed that "[t]o permit an already waived time limitation or manner of service defense to be interposed through the device of an amended answer would not only be contrary to the underlying purpose of section 11 (c) but would be of no practical effect given the express language prohibiting dismissal of the claim once the defenses are waived." (id at 184; see also Adebambo v State of New York, 181 Misc 2d 181 [Ct Cl 1999]; cf, Lawyer v State of New York, UID # 2005-036-101, Claim No. 109555 [Ct Cl September 6, 2005] Schweitzer, J.; Harris v State of New York, 190 Misc 2d 463 [Ct Cl 2002]). As a result, any defense with respect to the timeliness of the claim has been waived by the failure to assert such a defense in the answer or a pre-answer motion to dismiss.

Defendant states that no defense based on the timeliness of the claim was raised because it relied on the accrual date set forth in the claim, which it now contends is incorrect. The defendant argues therefore that the waiver provisions of subsection (c) should be inoperative as a matter of fairness because it was only upon review of the claimant's motion that it discovered the fact that the date of accrual set forth in the claim is incorrect[1]. Notably, however, the filed claim includes many of the same documents submitted with the claimant's motion for summary judgment. The documents were also apparently contained within the claim served upon the defendant as its answer to the claim raised a fourth defense objecting "to the filing of said exhibits with the Court for the reason that it is improper to file said exhibits or to attempt to make them a part of the record in this claim." Consequently, the Court is unpersuaded that the defendant should be permitted at this late date to avert a waiver of its timeliness defense based upon principles of fairness. In any event, the express language of subsection (c) permits no such discretion.

Based on the foregoing, the claimant's motion for summary judgment is denied and the defendant's cross-motion to dismiss the claim is denied.

January 15, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated October 15, 2007;
  2. "Affidavit/Affirmation" of James Pettus sworn to October 16, 2007 with exhibits;
  3. Claim (No. 113704) filed May 14, 2007;
  4. Notice of cross-motion dated November 13, 2007;
  5. Affirmation of Glenn C. King dated November 13, 2007 with exhibits.

[1]. The defendant does not set forth the date it believes the claim accrued, instead noting only that no incident occurred within ninety days of the date the claim was filed and served.