New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-044-549, Claim No. 112504, Motion Nos. M-74654, M-74655, CM-74678


Claimant’s requests for immediate trial and subpoenas denied. Defendant’s cross-motion for sanctions for repetitive motions granted.

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-74654, M-74655
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 12, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim (Claim No. 112504) 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 moves for assignment of counsel, and telephonic pre-trial proceedings to exchange witness lists, to discuss possible settlement, or in the alternative, to schedule an immediate trial (Motion No. M-74654).[1] Defendant opposes this motion and cross-moves for sanctions. Claimant also moves for the Court to issue subpoenas for several witnesses employed by defendant (Motion No. M-74655). Defendant opposes this motion as well. Claimant replies.
MOTION NO. M-74654
Claimant argues that because he is an uneducated layperson and his previous summary judgment motion was denied for procedural reasons, an attorney should be assigned to represent him in this matter.[2]

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 the alleged assault 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).

Claimant also essentially seeks a telephonic pre-trial conference to exchange witness lists, discuss possible settlement, or in the alternative, to schedule an immediate trial. Claimant's request is denied in its entirety. As this claimant has previously been informed in this claim

(see Pettus v State of New York, Ct Cl, July 10, 2007, Schaewe, J., Claim No. 112504, Motion No. M-73405 [UID # 2007-044-558]),[3] preliminary conferences are not mandated in prisoner pro se claims. Further, other conferences, including a settlement conference, may be scheduled “as the [C]ourt may deem helpful or necessary” (Uniform Rules for the Court of Claims [22 NYCRR] § 206.10 [e]). The Court declines to direct a conference in this instance (id.). The Court has no authority to order the parties to settle this claim. Moreover, although claimant is free to contact defendant directly to initiate settlement discussions, “[i]t is unnecessary and arguably unwise for the Court, the ultimate trier of fact, to be involved in such matters” (Forshey v State of New York, Ct Cl, Nov. 10, 2003, Minarik, J., Claim No. 105817, Motion Nos.

M-66810, M-66880, Cross Motion No. CM-66887 [UID # 2003-031-083]). Claimant’s request to exchange witness lists is premature at this time, and the Court is not inclined to prepare a discovery schedule for the parties. Claimant’s request for any type of pre-trial conference is hereby denied.

With respect to claimant’s application for a trial date, the scheduling of prisoner pro se claims falls within the discretion of the Court and this matter will be scheduled for trial as soon as practicable (Uniform Rules for the Court of Claims [22 NYCRR] § 206.13). Further, claimant has failed to establish that he meets any of the criteria set forth in CPLR 3403 (a) and, thus he is not entitled to a trial preference. Claimant’s request for an immediate trial is therefore denied.
MOTION NO. M-74655
In this motion, claimant moves for subpoenas to be issued to the following persons:

S. Ebert, G. Hartman, Correction Officer White, G. Ham, D. Hawkins, Captain Wenderlich, Assistant Attorney General (AAG) David Fruchter,[4] Dr. Thompson,[5] and the “person who show[ed] [claimant a] photo-array,”[6] to require their testimony at trial. Defendant contends that the motion should be denied because claimant has failed to set forth the need for each witness’s testimony.

Defendant’s position is correct. Claimant, as an inmate proceeding pro se, is not a person authorized to issue subpoenas and must seek a court order allowing the issuance of a subpoena (CPLR 2302). Claimant has failed to set forth the substance of the purported testimony of any of the proposed witnesses, and thus has not satisfied his burden of establishing that such testimony is material and necessary (see Moley v State of New York, Ct Cl, May 25, 2006, Moriarty III, J., Claim No. 105084, Motion No. M-71335 [UID # 2006-037-011]; Smith v State of New York,

Ct Cl, June 24, 2005, Lebous, J., Claim No. 101701-A, Motion Nos. M-70205, M-70206 [UID # 2005-019-544]).[7] Further, claimant has not demonstrated how the proposed witnesses are involved or otherwise related to the prosecution of this claim. Claimant’s Motion No. M-74655 for issuance of trial subpoenas is hereby denied.
Defendant cross-moves for sanctions against claimant, and argues that his conduct in making numerous motions in the same claim, for the same relief, constitutes harassing behavior and is therefore frivolous.

Claimant has previously moved on three separate occasions (Motion Nos. M-73126,

M-73240, and M-73626) for assignment of counsel in this claim. Those three motions were all denied (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 [UID # 2007-044-581]; Pettus v State of New York, Ct Cl, June 4, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73126, M-73240 [UID #2007-044-547]). The Court in Motion No. M-73626 “strongly warned [claimant] that the Court considers his conduct in making repetitive motions for the identical relief previously denied to be potentially frivolous, and that sanctions for similar motion practice may well be forthcoming in the future” (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 [UID # 2007-044-581], supra). The Court again repeated that warning in Motion No. M-73818 (Pettus v State of New York, Ct Cl, Nov. 19, 2007, Schaewe, J., Claim No. 112504, Motion Nos. M-73774, M-73818 [UID # 2007-044-583]).

Notwithstanding the Court’s warnings, claimant has made yet another motion in this claim for assignment of counsel. Further, claimant has made a second motion for a settlement conference even though his first motion for that same relief in this claim was denied (Pettus v State of New York, Ct Cl, July 10, 2007, Schaewe, J., Claim No. 112504, Motion No. M-73405 [UID #2007-044-558], supra.).

Pursuant to 22 NYCRR part 130, Courts may impose sanctions for frivolous conduct, that is, conduct which “is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130-1.1[c][1]; see Citibank [S.D.] v Alotta, 277 AD2d 547, 548-549 [2000]). To determine whether specific conduct is frivolous, the Court must examine “the circumstances under which the conduct took place . . . and . . . whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent” (22 NYCRR 130-1.1[c]; Navin v Mosquera, 30 AD3d 883, 883-884 [2006]). In order to award sanctions, the Court must issue “a written decision setting forth the conduct on which the . . . imposition is based, the reasons why the [C]ourt found the conduct to be frivolous, and the reasons why the [C]ourt found the amount awarded or imposed to be appropriate” (22 NYCRR 130-1.2; see e.g. Chevy Chase F.S.B. v. Sarsfield, 278 AD2d 773, 774 [2000]; McCue v McCue, 225 AD2d 975, 979 [1996].

Because defendant has expressly requested sanctions in its cross motion, and claimant has had the opportunity to respond – but apparently chose not to do so – a formal hearing on the issue is not necessary (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 [1990]; Matter of Lupoli, 227 AD2d 560, 561 [1996]; Matter of Gordon v Marrone, 202 AD2d 104 [1994], lv denied 84 NY2d 813 [1995]). The Court finds that claimant has indeed engaged in frivolous conduct by making these repetitive motions for both assignment of counsel and a settlement conference after such relief had already been denied. The Court has specifically warned claimant in this claim that such conduct was potentially frivolous. Further, the Court has called claimant’s attention to this unacceptable conduct in another claim as well (Pettus v State of New York, Ct Cl, Mar. 28, 2008, Schaewe, J., Claim No. 112084, Motion No. M-74264).[8] In spite of these warnings, claimant has continued to engage in conduct which is wasteful of judicial resources, harassing to defendant, and otherwise serves no legitimate purpose. The Court cannot countenance such frivolous conduct.

It is not unreasonable to infer that AAG Barbosa devoted two hours of his time to responding to Motion Nos. M-74654 and M-74655, as well as preparing this cross motion. On a conservative basis, the average hourly rate charged by attorneys in this area is approximately $150. Sanctions are therefore imposed upon claimant in the amount of $300. The Clerk of the Court is directed to enter judgment accordingly. Claimant shall deposit payment in the amount of $300 with the Clerk of the Court of Claims for transmittal to the Commissioner of Taxation and Finance (see 22 NYCRR §§ 130-1.1; 130-1.3; 206.20). All further proceedings in this claim are stayed until claimant satisfies said judgment.

Claimant’s Motion Nos. M-74654 and M-74655 are denied in their entirety.

Defendant’s cross motion is granted and sanctions in the amount of $300 are imposed against claimant.

June 12, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motions and defendant’s cross motion:

Motion No. M-74654 and Cross Motion No. CM-74678
1) Notice of Motion filed on March 10, 2008; Unsworn “Affidavit/Affirmation” of James Pettus.

2) Notice of Cross Motion filed on March 17, 2008; Affirmation in Opposition of Roberto Barbosa, AAG, dated March 14, 2008, and attached Exhibits A through C.

Motion No. M-74655
3) Notice of Motion filed on March 10, 2008; Unsworn “Affidavit/Affirmation of James Pettus (dated March 5, 2008).

4) Affirmation in Opposition of Roberto Barbosa, AAG, dated March 19, 2008, and attached Exhibits A and B.

5) Unsworn “Affidavit/Affirmation” (in opposition) of James Pettus (dated March 24, 2008).

6) Unsworn “Affirmation/Affirmation” of James Pettus (dated March 31, 2008).

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

[1]. Claimant has made numerous motions in this claim, many of which are not relevant to the resolution of the current motions. To the extent that any of those prior motions are relevant to the present issues, however, they will be discussed infra.
[2]. The Court notes that other than changing the claim number on the caption, claimant has apparently used the identical notice of motion and “Affidavit/Affirmation” in this motion that he used in Motion No. M-74653 in an unrelated claim, including his statement that “IT (should) BE obvious [claimant] (DOES-NOT-KNOW-WHAT-THE-HELL-HE-IS-DOING).”
[3]. Claimant has also been so notified in at least one other claim (Pettus v State of New York, Ct Cl, July 27, 2006, Sise, P.J., Claim No. 109717, Motion No. M-71735 [UID # 2006-028-579]).
[4]. AAG Fruchter is apparently working in the Attorney General’s Office located in Albany.

[5]. Claimant initially requested only an “EXPERT DOCTOR,” but thereafter specifically requested Dr.
Thompson from Great Meadow Correctional Facility in his “Affidavit/Affirmation” dated March 31, 2008.
[6]. Claimant asserts that he was shown a photo array of blurry and unclear photographs to willfully and purposefully frustrate him in his attempt to identify the correction officers who allegedly assaulted him.

[7]. In his affirmation in opposition to this motion, AAG Roberto Barbosa informs the Court that S. Ebert, G. Hartman, CO White, G. Ham, and D. Hawkins are the persons recently identified by claimant as the correction officers who assaulted him. AAG Barbosa also states that claimant allegedly displayed his injuries to AAG Fruchter during a deposition in another action, and that Edward Conlan is the person who displayed the photo array to claimant.
[8]. The Court notes that the determination of whether counsel should be assigned or a conference held requires the exercise of judicial discretion based upon an analysis of the facts and circumstances of each individual claim. Accordingly, it would be inappropriate to find that a motion requesting that relief for the first time in any claim was frivolous based upon the denial of said relief in an unrelated claim.