New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-188, Claim No. 116366, Motion Nos. M-76254, M-76447, M-76469, CM-76600


Pro se inmate was sanctioned for frivolous conduct and action was stayed pending payment of judgment.

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-76254, M-76447, M-76469
Cross-motion number(s):
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 16, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


In three motions claimant moves for the following relief : (1) issuance of subpoenas by the Clerk of the Court (M-76447); (2) to proceed as a poor person and for service of the claim pursuant to CPLR 308 (2) (4) and (5) (M-76254) and (3) for "summary judgment by submissions per CPLR 4401" and to "have defendants (refute), (rebut) by affidavits, deposition, and evidence" (M-76469). Defendant opposes the motions and cross-moves for sanctions pursuant to 22 NYCRR part 130. For the reasons which follow, claimant's motions are denied and the defendant's cross-motion is granted. The instant claim filed on January 30, 2009 alleges that the use of excessive force by a correction officer on November 4, 2008 caused claimant's wrists to swell up "to the size of basketballs". He alleges the injury was caused by handcuffs that were applied too tightly.

The Court will first address claimant's motion for the issuance of subpoenas. Review of claimant's recent motions decided by this Court reveals that claimant has moved on at least eight separate occasions for the issuance of judicial subpoenas. On each occasion the motion was denied because the use of subpoenas was an inappropriate procedural vehicle for obtaining discovery or because the claimant failed to establish the relevance of the requested documents or testimony. In denying one such motion, the Court recently stated the following:
"In general, ' "a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" ' (Matter of Murray v Hudson, 43 AD3d 936, 937 [2007], quoting People v Gissendanner, 48 NY2d 543, 551 [1979]). CPLR 3120 (1) permits the service of a notice for discovery on a 'party' and a subpoena duces tecum on 'any other person'. A subpoena duces tecum is an inappropriate procedural vehicle for obtaining discovery from the defendant in this case.

Moreover, '[i]t is well settled that the purpose of a subpoena duces tecum is to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding' (Velez v Hunts Point Multi-Serv. Ctr., Inc., 29 AD3d 104, 112 [2006]). Here, it does not appear that the documents which are the subject of the proposed subpoena are material and relevant to this claim" (Pettus v State of New York, Claim No. 115454, Motion No. M-75770, UID # 2009-015-132 [Ct Cl, February 2, 2009] Collins, J.).

Claimant's motion for the issuance of subpoenas in this recently filed claim must fail for these same reasons. He is requesting "(All) and (any) documents pertaining to grievant no. (GM-47084-08) from Great Meadow Corr Facility."[1] To the extent any such documents are relevant to this claim, they may be sought in discovery. The Court considers claimant's conduct in repeatedly making the same baseless motion to be sanctionable as will be discussed below.

Claimant's motion for poor person status is denied as moot. By Order dated February 9, 2009 claimant's application for a filing fee reduction was granted and the fee was reduced. Inasmuch as the filing fee has been addressed in the prior Order, and the prosecution of this matter requires no additional payment of costs or fees, poor person status is unnecessary. To the extent this motion requests waiver of the requirements that the claim be served by Certified Mail, Return Receipt Requested on the Office of the Attorney General, it is denied (Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Rodriguez v State of New York, 307 AD2d 657 [2003]).

Claimant's motion for summary judgment and to have the defendant refute the allegations in the claim is denied as frivolous. CPLR 3212 states that "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions", none of which were submitted in support of the instant motion. What claimant did submit with this motion was a copy of uncertified medical records regarding the alleged injury to his wrist. These records reflect that claimant was treated on November 4, 2008 for a complaint of osteoarthritis and that on November 5, 2008 he complained of pain in his wrist which he attributed to handcuffs, and was seen by a nurse. On that date it was noted that there was no swelling, claimant had full range of motion and there were no scratches, abrasions or bruises. No abnormal findings were noted on X-ray examination of claimant's wrist. Claimant's motion for summary judgment is completely without basis in law and fact and is therefore denied.

Addressing the defendant's cross-motion, sanctions for frivolous conduct are authorized pursuant to 22 NYCRR part 130 of the Rules of the Chief Administrator of the Courts, which were made applicable to actions in the Court of Claims by section 206.20 of the Uniform Rules for the Court of Claims (22 NYCRR § 206.20). Section 130-1.1 authorizes the Court in its discretion to impose financial sanctions on a party for frivolous conduct. Conduct is "frivolous" if:
"(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false" (22 NYCRR § 130-1.1 [c] ).

There is no question that the instant motions for the issuance of subpoenas and for summary judgment are frivolous within the meaning of section 130-1.1 (c). Recently, the Honorable Judith A. Hard warned this claimant, in a different claim, that such future motions would warrant sanctions, stating:
"Looking at claimant’s behavior as a whole, and bearing in mind that the 'intent of [Part 130-1] is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics' (Matter of Kernisan v Taylor, 171 AD2d 869, 870 [2d Dept 1991]), the impetus to impose sanctions on claimant is certainly present. Nevertheless, giving claimant the benefit of the doubt and because claimant was only recently warned by the Hon. Francis T. Collins regarding the appropriate use of subpoenas after the instant motions were already filed, the Court declines to impose sanctions at this time.

Claimant is warned, however, that continued conduct such as making successive motions for the same relief, motions for relief that claimant has already been advised is not available or any type of motion in which the Court finds the conduct frivolous under 22 NYCRR 130, will subject claimant to an appropriate penalty (see e.g. Pettus v State of New York, Claim No. 112504, Motion Nos. M-74654, M-74655, CM-74678, UID # 2008-044-549, Schaewe, J, supra; Pettus v State of New York, Claim No. 113867, Motion Nos. M-74320, CM-74364, UID # 2008-015-019, Collins, J., supra) which may include curtailing his ability to file future motions without prior judicial approval (see e.g. Lammers v Lammers, 235 AD2d 286 [1st Dept 1997])" (Pettus v State of New York, Claim No. 112084, UID No. 2009-032-112 [Ct Cl, March 9, 2009] Hard, J.).

Claimant's motion for summary judgment was also denied in that case, and many others, as the result of the claimant's complete failure to support the motion with relevant evidentiary material, much less evidence in admissible form.

The instant motions by the claimant are frivolous as they are 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]). In addition, consideration of the sheer volume of motions which have been made by this claimant indicates that his conduct is undertaken primarily to harass the defendant (22 NYCRR 130-1.1 [c] [2]). As Judge Hard noted in the decision cited above, since August of 2004, claimant has filed 26 claims and over 100 motions, many of which requested relief which he had been previously advised was unavailable in the Court of Claims, i.e., trial by jury (Id. at n 2). It is well recognized that a litigious claimant filing frivolous claims or motions can be extremely costly to the defendant and waste an inordinate amount of court time (Sassower v Signorelli, 99 AD2d 358, 359 [1984]). Imposition of a monetary sanction against an indigent inmate such as the claimant here, however, has little or no effect in deterring such conduct (Faison v State of New York, 176 Misc 2d 808 [1998]). In Pettus v State of New York (Claim No. 112504, UID No. 2008-044-549 [Ct Cl, June 12, 2008], J. Schaewe) Judge Schaewe fashioned a remedy which, in this Court's view, strikes an appropriate balance between the public policy of free access to the courts to redress wrongs (see Board of Educ. of Farmingdale Union Free School Dist. v Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL-CIO, 38 NY2d 397, 404 [1975]) and deterrence of frivolous conduct. There, the Court imposed a sanction and stayed the claim pending payment.

Consideration of the time spent opposing the instant motions leads this Court to conclude that the imposition of $150.00 sanction is appropriate. Payment shall be deposited 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 the judgment in full.

Let judgment be entered accordingly.

July 16, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

Motion No. M-76254
  1. Notice of motion sworn to January 21, 2009;
  2. Notice of petition of James Pettus dated December 8, 2008;
  3. Petition of James Pettus sworn to December 10, 2008;

Motion No. M-76447

  1. Notice of petition dated February 27, 2009;
  2. Petitions sworn to March 2, 2009 with attachment.

Motion No. M-76469

  1. Notice of petition dated March 16, 2009;
  2. Petition sworn to March 18, 2009 with attachments.

Cross-Motion No. M-76600

  1. Notice of cross-motion dated April 28, 2009;
  2. Affirmation of Stephen J. Maher dated April 28, 200[9].

[1]. The quote is uncorrected.