New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-015-191, Claim Nos. 113704, 113705, Motion Nos. M-76562, M-76563


Pro se inmate’s post-trial motions for poor person status, a new trial and other relief were denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113704, 113705
Motion number(s):
M-76562, M-76563
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:
July 23, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate proceeding pro se, alleged in two claims (claim Numbers 113704 and 113705) that he is a non-violent inmate improperly placed in a maximum security correctional facility "without committing a serious prison infraction". The trial of these claims was held on November 5, 2008 and resulted in dismissal based upon the well-established rule that the Commissioner of the Department of Correctional Services possesses the discretionary authority to determine the security classification of inmates and what degree of supervision is required, whether for the protection of the prisoner or the public (see e.g. Matter of Burr v Goord, 8 AD3d 853 [2004]; Matter of Martin v Coughlin, 207 AD2d 932 [1994]; Ramirez v Ward, 64 AD2d 995 [1978]). To the extent the claimant testified at trial that disciplinary charges brought against him were improperly classified as Tier III disciplinary infractions, the court noted that this, too, is a discretionary matter in which the Court should not substitute its judgment for that of the proper correctional personnel (Matter of Pettus v Selsky, 28 AD3d 1043 [2006]). Claimant now moves for poor person status (M-76562) in order to obtain a copy of the trial transcript without cost and to have a complete " 'full record' " in order to perfect an appeal. In a separate motion (M-76563) the claimant requests the following relief:

1. To have a new trial, in front of another judge.

2. Have Hon. Francis to stipulate Decision and Order or Judgment, so plaintiff may properly appeal to Third Department, due to the fact, Decision (without) more is not final.

3. To have (clerk) not (Hon. Francis) serve (subpoena) to obtain trial transcript.

Motion No. M-76562 - Request For Poor Person Status

CPLR 1101 sets forth the procedure for applying for poor person status and requires, inter alia, that the application be supported by an affidavit setting forth the amount and sources of the moving party's income and assets and that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action.[1] Here, claimant asserts that he is a ward of the State and, as such, receives no money from any source. No mention is made of his assets or inmate account balance, however. The statute also requires that notice of the motion be given to the county attorney in the county in which the action is triable or the corporation counsel if the action is triable in the City of New York (CPLR 1101 [c]). Claimant failed to serve the county attorney. Lastly, CPLR 1101 (a) requires a showing of merit. Here, claimant's utter failure to establish the potential merit of his appeal requires denial of the motion on this basis alone (see Matter of McNear v State of New York, 38 AD3d 1093 [2007], lv denied 9 NY3d 801; CPLR 1101[a]). Accordingly, claimant's motion for poor person status for the purpose of obtaining the trial transcript without cost is denied.

M-76563 - Motion For New Trial And Other Relief

Claimant's motion for a new trial is denied. The motion is untimely (CPLR 4405) and claimant failed to state a basis for the request.

Claimant's request that the title of the decision be amended to "Decision and Order" is denied. While claimant correctly points out that a Decision is not an appealable paper (CPLR 5512), a Judgment was entered by the Clerk of the Court on March 6, 2009 in accordance with the usual practice of the Court of Claims.

Lastly, no subpoena is necessary to obtain a trial transcript. Claimant may direct his request to the Clerk's office together with the appropriate fee.

Based on the foregoing, claimant's motions (M-76562 and M-76563) are denied.

July 23, 2009
Saratoga Springs, New York

Judge of the Court of Claims

Motion No. M-76562
  1. Notice of Petition dated April 1, 2009;
  2. Petition of James Pettus sworn to April 1, 2009 with exhibit;
  3. Affirmation of Glenn C. King dated May 18, 2009.

Motion No. M-76563

  1. Notice of Petition of James Pettus dated April 2, 2009;
  2. Petition of James Pettus sworn to April 3, 2009 with exhibit;
  3. Affirmation of Glenn C. King dated May 18, 2009.

[1]. The motion may be brought in the "court in which the action is triable, or to which an appeal has been or will be taken" (CPLR 1101 [a]).