New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-032-112, Claim No. 112084, Motion Nos. M-75954, M-75767, M-75768, M-75951, CM-76070


Synopsis



Case Information

UID:
2009-032-112
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112084
Motion number(s):
M-75954, M-75767, M-75768, M-75951
Cross-motion number(s):
CM-76070
Judge:
JUDITH A. HARD
Claimant’s attorney:
James Pettus, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
March 9, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, James Pettus, an inmate proceeding pro se, filed this claim alleging that medical personnel at Southport Correctional Facility improperly discontinued his prescription pain medication, “causing needless and unnecessary pain and suffering.” Presently he has four motions pending in this claim. Three collectively seek to compel the Clerk of the Court to serve subpoenas upon defendant for “all and any medical documents” concerning the discontinuance of his pain medication and for defendant to comply therewith (Motion Nos. M-75954, M-75767, M-75768). Claimant has also filed a motion for “summary judgment . . . and immediate trial” (M-75951). Defendant opposes these motions and cross moves for sanctions under 22 NYCRR 130-1 (CM-76070).

The first three motions seek the Court to issue, and the Clerk of the Court to serve upon defendant, a subpoena duces tecum for “all and any medical documents” concerning the discontinuance of claimant’s pain medication and “all and any medical documents” pertaining to the reasons underlying the discontinuance (M-75767) and to compel defendant to comply with this proposed, but unissued or served, subpoena for the medical records (M-75768, M-75954).[1]

“A subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence (People v Gissendanner, 48 NY2d 543, 551)” (Matter of Terry D., 81 NY2d 1042, 1044 [1993]). “Rather, its purpose is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’” (id. at 1044, quoting Matter of Constantine v Leto, 157 AD2d 376, 378 affd 77 NY2d 975; see Matter of Murray v Hudson, 43 AD3d 936 [2d Dept 2007]). In a similar claim regarding the discontinuation of another pain medication in a separate correctional facility, this precise point was recently explained to claimant (see Pettus v State of New York, Claim No. 115283, Motion Nos. M-75771, M-75856, UID # 2009-015-128, Collins, J.).[2] Claimant was also warned that making a “motion to compel compliance with subpoenas not yet issued or served is ‘completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law’” (id. quoting 22 NYCRR 130-1.1 [c][1]). Consequently, claimant’s motions seeking subpoenas and to compel compliance therewith are denied. Claimant must utilize the discovery mechanisms set forth in article 31 of the CPLR and the procedure set forth in Directive 4.10 (Affirmation in Opposition and In Support of Defendant’s Cross Motion of Roberto Barbosa, Esq, AAG, filed December 26, 2008, Exhibit A).

Turning to defendant’s cross motion for sanctions, the Court first notes that on at least three separate occasions claimant has already been either warned or sanctioned for similar conduct. “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])” (Pettus v State of New York, Claim No. 112504, Motion Nos. M-74654, M-74655, CM-74678, UID # 2008-044-549, Schaewe, J; see also Pettus v State of New York, Claim No. 113867, Motion Nos. M-74320, CM-74364, UID # 2008-015-019, Collins, J. [imposing sanctions for claimant’s repeated request for a jury trial]; Pettus v State of New York, Claim No. 115283, Motion Nos. M-75771, M-75856, UID # 2009-015-128, Collins, J., supra).

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]).

With regard to claimant’s motion for summary judgment the Court initially notes that negligence actions, including medical negligence or malpractice claims, are rarely appropriate for resolution by summary judgment, as they typically involve numerous factual issues and require an assessment of whether the defendant's actions were reasonable (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]). Moreover, credibility issues cannot be resolved on a motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; see also Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]).

The submissions made in connection with a motion for summary judgment must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]), and in order to succeed, the moving party must make a prima facie showing that he is entitled to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). This burden of proof can only be met by the submission of evidentiary proof in admissible form (Toomey v Adirondack Surgical Assocs., 280 AD2d 754 [3d Dept 2001]) and, in cases such as these, generally requires opinion evidence to establish a deviation from the standard of care to which medical professionals must adhere in the community and to establish that any such deviation caused or contributed to the alleged injuries (see generally Schrempf v State of New York, 66 NY2d 289 [1985]; Hoffman v Pelletier, 6 AD3d 889 [3d Dept 2004]). Such expert opinion evidence would be appropriate here because the medical necessity for claimant’s continued pain medication is not within the ordinary knowledge of the trier of fact (see Morgan v State of New York, 40 AD2d 891 [3d Dept 1972], affd 34 NY2d 709 [1974]; Wells v State of New York, 228 AD2d 581 [2d Dept 1996]).

In the instant motion, claimant has submitted no evidence in admissible form to prove the elements of his claim, nor has he submitted any expert opinion evidence. Indeed, the exhibits annexed to his summary judgment motion (see fn 1, supra) appear to raise issues of fact rather than to establish his entitlement to summary judgment. Consequently, claimant's motion for summary judgment is denied.

To the extent claimant also seeks a trial preference, claimant has been told on two prior occasions that the scheduling of prisoner pro se claims falls within the discretion of the Court. Absent proof indicating that he meets any of the criteria set forth in CPLR 3403 (a), he is not entitled to a trial preference. Claimant’s request for an immediate trial is, therefore, also denied (see 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-73704, M-73727, UID # 2007-015-242, Collins, J.).

In sum, claimant’s motions (Motion Nos. M-75767, M-75954, M-75951 and M-75768) are denied. Defendant’s motion for sanctions (CM-76070) is also denied but will be revisited should claimant’s actions deem it necessary (see Matter of Simpson v Ptaszynska, 41 AD3d 607 [2d Dept 2007]; Matter of Shreve v Shreve, 229 AD2d 1005 [4th Dept 1996]).



March 9, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:

1. Notice of Motion (M-75767), filed October 22, 2008 with annexed affidavit of James Pettus, pro se, sworn to October 10, 2008 and proposed subpoena duces tecum;

2. Notice of Motion (M-75768), filed October 27, 2008 with annexed affidavit of James Pettus, pro se, sworn to October 17, 2008;

3. Affirmation in Opposition to Claimant’s Motion for the Issuance of Subpoenas (M-75767) of Roberto Barbosa, Esq, AAG, filed December 5, 2008 with annexed Exhibits A-B;

4. Affirmation in Opposition to Claimant’s Motion for the Issuance of Subpoenas (M-75768) of Roberto Barbosa, Esq, AAG, filed December 5, 2008 with annexed Exhibits A-B;

5. Notice of Cross Motion, filed December 26, 2008 (CM-76070);

6. Affirmation in Opposition and In Support of Defendant’s Cross Motion of Roberto Barbosa, Esq., AAG, filed December 26, 2008 with annexed Exhibits 1-6 and A-B;

7. Notice of Motion (M-75951), filed December 1, 2008 with annexed Affidavit of James Pettus, pro se, sworn to November 19, 2008 and annexed Exhibits;

8. Notice of Motion (M-75954), filed December 2, 2008 with annexed Affidavit of James Pettus, pro se, sworn to November 17, 2008;

9. Affirmation in Opposition to Claimant’s Motion of Roberto Barbosa, Esq, AAG, filed December 22, 2008 with annexed Exhibit A.














[1].Evidently, claimant has obtained at least some of these documents because he has attached as an exhibit to his motion for summary judgment copies of his own medical records which show that medical personnel for the Department of Correctional Services made notations that his pain medication was discontinued because claimant was hoarding the medicine. His Ambulatory Health record notations mention that 89 Robaxin tablets were found in his cell at one point (M-75951, annexed Exhibits).
[2].The Court notes that since August 2004, claimant has filed 26 claims and over 100 motions, many of which have repeatedly requested relief that was either denied in a specific claim already or for relief that he had been told was not available in the Court of Claims, such as a jury trial.