New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2008-044-590, Claim No. 112504, Motion Nos. M-75300, M-75772


Inmate claimant’s motions for reargument and lifting of stay of all further proceedings (until claimant satisfies judgment for sanctions due to frivolous conduct) are 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-75300, M-75772
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 20, 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 previously moved for assignment of counsel, 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), as well as moving that the Court issue subpoenas for several witnesses employed by defendant (Motion No. M-74655).[1] At that time, defendant cross-moved for sanctions. The Court denied claimant’s motions in their entirety, and granted defendant’s cross motion for sanctions in the amount of $300 (Pettus v State of New York, Ct Cl, June 12, 2008, Schaewe, J., Claim No. 112504, Motion Nos. M-74654, M-74655, Cross Motion No. CM-74678 [UID # 2008-044-549]). The Clerk of the Court was directed to enter judgment accordingly, and the Court also stayed all further proceedings in this claim until claimant satisfied said judgment (id.).

Claimant now moves for reconsideration, renewal, or reargument, as well as to vacate the stay (Motion No. M-75300). Defendant opposes the motion. After filing Motion No. M-75300, claimant also filed Motion No. M-75772, requesting again that the stay be vacated, and that the claim be placed on the trial calendar. Defendant opposes Motion No. M-75772 as well.
MOTION NO. M-75300
Claimant argues that the Court’s prior determination “would be an (obdurant) [sic] and (malicious) method to assist the Atty General [sic] Office.” Claimant also contends that because he is indigent and has no means available to pay the judgment, he has been denied access to the courts.

In opposition, defendant argues that claimant has failed to identify any matter of law or fact which the Court misapprehended, and in any event, claimant’s admission that he does not disagree with the monetary sanction imposed supports the Court’s determination. Further, defendant contends that because claimant has not alleged any new facts which were not previously known, renewal is not available.

Although there is no such procedural device as a “motion for re-consideration,” the Court will treat claimant’s Motion No. M-75300 as an application for reargument or renewal. To the extent that claimant seeks reargument of the Court’s prior Decision and Order, it must be denied.

Claimant has not established that the Court misapprehended or overlooked any relevant facts or misapplied the controlling law (CPLR 2221 [d] [2]; see generally Foley v Roche, 68 AD2d 558, 567-568 [1979]). Further, as defendant correctly notes, claimant does not dispute the imposition of the monetary sanction. Accordingly, reargument is inappropriate in this matter (CPLR 2221 [d] [2]; see Foley v Roche, supra).

To the extent that Motion No. M-75300 seeks renewal, it is also without merit. Claimant’s failure to either set forth newly discovered evidence which was not available on the prior motion, or to show a change in the law which would affect the previous decision, is fatal to his motion to renew (see CPLR 2221 [e] [2]; Foley v Roche, supra at 568).

Claimant also requests that the Court vacate the stay which is in effect in this action until claimant satisfies the sanction imposed in the amount of $300.00. CPLR 2201 provides that “[e]xcept where otherwise prescribed by law, the [C]ourt in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” Issuance of a stay is within the discretion of the trial court (see generally Sears v Country Developers, 178 AD2d 708, 709 [1991]), and may be vacated when the reasons for initially granting it no longer exist (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2201:17) or when the stay is no longer predicated “upon such terms as may be just” (Haenel v November & November, 144 AD2d 298, 300 [1988]) .

Claimant was sanctioned for his conduct in repetitively requesting identical relief – such as assignment of counsel, and settlement conferences – notwithstanding the Court’s numerous warnings that such conduct was potentially frivolous, and that “sanctions for similar motion practice may well be forthcoming” (Pettus v State of New York, Ct Cl, June 12, 2008, Schaewe, J. Claim No. 112504, Motion Nos. M-74654, M-74655, Cross Motion No. CM-74678 [UID # 2008-044-549]). By engaging in his frivolous conduct, claimant has wasted valuable judicial resources as well as causing the Attorney General’s Office to expend several attorney work hours responding to claimant’s clearly meritless applications. Claimant was sanctioned and further proceedings in this claim were stayed in order to deter claimant from engaging in frivolous conduct in the future, both in this claim and other claims that he has pending in the Court of Claims.[2] Claimant has submitted no evidence that there has been any change in circumstances in this matter which would warrant a lifting of the stay (cf. Haenel v November & November, supra; Russell v State of New York, Ct Cl, June 19, 2002, Midey Jr. J., Claim No. 99666, Motion No. M-64775 [UID # 2002-009-26]). To the extent that claimant seeks a vacatur of the stay, it is denied. Motion No. M-75300 is denied.
MOTION NO. M-75772
In Motion No. M-75772, claimant argues that the stay is defective, improper and in error of law, and requests that the Court vacate the stay. Claimant argues that this action is trial ready, and the stay was imposed for personal reasons solely to prejudice claimant. Claimant further contends that the stay is a “miscarriage of Justice.”[3] Conversely, defendant argues that claimant has failed to provide any support for his conclusory allegations of prejudice. Further, defendant correctly notes that claimant filed this motion notwithstanding the pendency of Motion No.

M-75300 which also seeks to lift the stay.

As set forth previously in this Decision and Order, the imposition of a stay lies within the Court’s discretion. Claimant was sanctioned and a stay imposed as a result of claimant’s continued frivolous conduct. Claimant has failed to provide any basis for vacating the stay in this claim. Motion No. M-75772 is therefore denied.
Motion Nos. M-75300 and M-75772 are both denied in their entirety.

November 20, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motions:

1) Notice of Motion filed on July 30, 2008; Unsworn Affidavit/Affirmation of James Pettus dated July 29, 2008.

2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated August 6, 2008.

3) Notice of Petition filed on October 27, 2008; Petition of James Pettus sworn to on October 22, 2008.

4) Affirmation in Opposition of Roberto Barbosa, AAG, dated November 10, 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]. Notwithstanding claimant’s assertion that he does not have any other State or Federal actions pending, a review of Court of Claims’ records reveals that claimant has 10 claims currently pending in the Court of Claims.
[3]. In addition to requesting that the stay be vacated and that this proceeding be “remand[ed],” claimant also wants to “Let (Hon. Scheawe [sic]) know that was a BIG-‘NO-NO’ and not ‘NICE’!!!”