New York State Court of Claims

New York State Court of Claims

PETTUS v. THE STATE OF NEW YORK, #2009-032-132, Claim No. 116320-A, Motion Nos. M-76305, M-76466, M-76446, CM-76433


Synopsis



Case Information

UID:
2009-032-132
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):
116320-A
Motion number(s):
M-76305, M-76466, M-76446
Cross-motion number(s):
CM-76433
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:
July 2, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, James Pettus, a pro se inmate, filed this claim on January 16, 2009 alleging that defendant State of New York has repeatedly interfered with his access to the courts by, among other things, being “denied the opportunity to mail (legal mail) on advanced form” (Claim). Presently he has three motions pending in this claim. Motion No. M-76305 requests an order of this Court allowing him to proceed as a poor person and to serve the claim by regular mail based on allegations that the Department of Correctional Services (DOCS) is denying his request to send the claim by certified mail, return receipt requested.[1] Motion No. M-76446 requests an order directing the Clerk of the Court to serve subpoenas upon various DOCS employees. Lastly, Motion No. M-76466 seeks summary judgment.

Defendant State of New York cross-moves for dismissal of Claim No. 116320-A on the basis that this claim was served by regular mail as opposed to by certified mail, return receipt requested as required by Court of Claims Act § 11 (a). This allegation is supported by a copy of the envelope received by the Attorney General containing the claim (Affirmation of Roberto Barbosa Esq., AAG, filed March 25, 2009, Exhibit A). Because the State's cross-motion is dispositive, the Court addresses it first.

Court of Claims Act § 11 (a) provides, in relevant part, that a copy of a claim must be served on the Attorney General "either personally or by certified mail, return receipt requested." This requirement, unless waived (see Court of Claims Act § 11 [c]), is jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]). Consequently, a claimant's failure to serve the Attorney General personally or by certified mail, return receipt requested, is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

In its answer, defendant State of New York alleged, as its first affirmative defense, that the claim had been served by regular mail, rather than certified mail, return receipt requested as required by section 11 of the Court of Claims Act. This defense was stated with sufficient particularity to satisfy the pleading requirement and has, therefore, not been waived (Court of Claims Act § 11 [c]). Claimant, other than requesting an order allowing him to serve by regular mail, does not dispute that the instant claim was sent to the Attorney General by this unauthorized method of service although he alleges that DOCS personnel are denying him proper mail advances and are impeding his access to the courts.[2] While there are rare instances where this Court will invoke the doctrine of equitable estoppel to excuse a failure to timely serve a claim in circumstances where it is proven that there was misfeasance or malfeasance on the part of DOCS personnel in processing mail, nothing presented in claimant’s moving papers evidences that in this circumstance such relief is warranted (see Rivera v State of New York, 5 AD3d 881 [3d Dept 2004]; Rodriguez v State of New York, 307 AD2d 657 [3d Dept 2003]; Tooks v State of New York, 40 AD3d 1347 [3d Dept 2007]).

Consequently, defendant's cross-motion (Motion No. CM-76433) must be granted and Claim No.116320-A is hereby dismissed. The remaining motions are denied as moot.





July 2, 2009
Albany, New York
HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Petition (M-76305), with annexed Affidavit of James Pettus, sworn to December 3, 2008, filed January 16, 2009 and Unsworn Affidavit of James Pettus filed April 16, 2009 with annexed Exhibits;

2. Notice of Cross-Motion (CM-76433), filed March 25, 2009;

3. Affirmation in Opposition (M-76305) and in Support of Cross-Motion (CM-76433) of Roberto Barbosa, Esq., AAG, with annexed Exhibits A-F filed March 25, 2009;

4. Unsworn Affidavit in Opposition of James Pettus, filed March 30, 2009;

5. Notice of Petition (M-76446), filed March 23, 2009 with annexed Affidavit of James Pettus, sworn to February 25, 2009;

6. Notice of Petition (M-76466), filed March 30, 2009 with annexed Affidavit of James Pettus, sworn to March 18, 2009 with annexed Exhibits and Affidavits of James Pettus, sworn to March 30, 2009 and April 10, 2009 with annexed exhibits;

7. Affirmation in Opposition (M-76466) of Roberto Barbosa, Esq., AAG, with annexed Exhibit A, filed April 27, 2009;

8. Claim 116320-A, filed January 16, 2009;

9. Verified Answer, filed February 25, 2009.



[1]. It is noted that the rules and regulations of DOCS require that the facility pay for specialized mail handling service, such as certified mail, return receipt requested, when such service is “required by statute, court rule or court order” if the inmate does not have sufficient funds to do so himself (7 NYCRR § 721.3[a][3][ii][a]).
[2].As noted in a prior Order of this Court, claimant has a litigious history in the Court of Claims. Since August 2004, claimant has filed 26 claims and over 100 motions. In the past year alone, he has filed over 40 motions. He has also been busy in other forums such as the federal system where the Second Circuit Court of Appeals has recently noted that “[he] appears on [that] Court’s docket sheet as an appellant, movant, or petitioner in over sixty matters and in countless matters before the district courts” (Pettus v Morgenthau, 554 F3d 293, 295 [2009]). Under a federal statute pertaining to inmate litigation (see 28 USC § 1915 [g]), claimant has been barred from being eligible to file in forma pauperis because he has had three or more of his lawsuits dismissed as frivolous, malicious or for failure to state a cause of action (see id.). He has also been sanctioned by various Judges of the Court of Claims for making frivolous motions and cautioned by this Judge for the same tactics as well. While not necessarily dispositive, these impressive statistics tend to call into question his claim that he has been denied access to the courts.