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
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).
“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 ).
“Rather, its purpose is ‘to compel the production of specific
documents that are relevant and material to facts at issue in a pending judicial
at 1044, quoting Matter of Constantine v
, 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.).
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]). 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 )” (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
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 ; Zuckerman v City of New York, 49
NY2d 557, 562 ). 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 ;
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 ; 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]).
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
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
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.