New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-015-008, Claim No. 113705, Motion Nos. M-74137, CM-74193


Pro se inmate's motion for summary judgment was denied and defendant's cross-motion to dismiss claim was denied. Defendant could not amend answer to allege the defense that the claim was untimely as this defense was waived.

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-74137) and the defendant cross-moves (CM-74193) to dismiss this claim on the grounds that: (1) the claim is barred by the doctrine of res judicata or collateral estoppel and (2) the claim is untimely. As no defense with respect to the timeliness of this claim was raised in the defendant's answer, the defendant 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 apparent willful misrepresentation." 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 as follows:
"Claimant, who is non-violent, was placed into a maxium [sic] security prison, without committing a serious prison infraction. See: Title 7 NYCRR 280.2 (B) (Therein) causing plaintiff to be beaten, assaulted, robbed, extorted, and sexual harassed (incessintly [sic]) (Thereby) denying plaintiff [reasonable safety] See Farmer v Brennan 114 S.Ct. 1970. These acts are 'on-going' and 'current'.

"Plaintiff has no (violence) on his criminal rap sheet or institutional record, or personal history, placing plaintiff life, safety, health, and well-being in (constant) jeopardy, as a non-violent inmate, while in the care, custody and control of (D.O.C.) which is a State Governmental entity.

"See Exhibits, motions, and memorandum of law attached."
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 failed to submit copies of the pleadings. He also failed to make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case (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 must also be denied. First, the argument that this claim is barred by res judicata or collateral estoppel is premised on the contention that the facts which form the basis of the claim were also the subject of Claim No. 113751 which was dismissed by Order of the Honorable Catherine C. Schaewe dated October 26, 2007 (see defendant's Exhibit A). A review of Judge Schaewe's Order, however, reveals that the claimant alleged in that case that he was improperly confined to the special housing units at Elmira Correctional Facility and Cayuga Correctional Facility. As stated by Judge Schaewe in that case, "[t]he essence of claimant's claim is that the disciplinary penalty of serving time in SHU was not authorized for his infractions, and thus he was wrongfully confined." Here, on the other hand, the claimant alleges that although he is nonviolent, he was placed into a maximum security prison where he was "beaten, assaulted, robbed, extorted, and sexually harassed." Since the claims do not arise out of the same transaction or occurrence dismissal on the ground of res judicata or collateral estoppel is not appropriate (see e.g. Gramatan Home Investors Corp. v Lopez, 46 NY2d 481 [1979]).

Defendant's cross-motion for dismissal on the ground that the instant claim was untimely filed or served, or for permission to amend its answer to allege as a defense that the claim was untimely filed or served, must also be denied. The claim was filed on May 14, 2007 and, according to the defendant, properly served on that same date. Defendant served its answer on June 19, 2007, raising no defense with respect to the timeliness of the claim. 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]). Thus, defendant waived any defense it may have had with respect to the time limitations applicable to this claim.

Defendant states that it raised no defense based on the timeliness of the claim 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 it was only upon review of the claimant's motion that it discovered the date of accrual set forth in the claim is incorrect[1]. As evidence of the purported willfulness of the claimant's conduct, the defendant points to the Order of Judge Schaewe which determined the dates the claim at issue therein accrued. As set forth above, however, the claim dismissed by Judge Schaewe did not involve the same allegations as the instant claim. In sum, there is no evidence of a willful misrepresentation of the date the claim accrued. In any event, however, the express language of subsection (c) permits no discretion in dismissing an action once waiver of the timeliness defense has occurred.

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. 113705) filed May 14, 2007.
  4. Notice of cross-motion dated November 8, 2007;
  5. Affirmation of Glenn C. King dated November 8, 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.