New York State Court of Claims

New York State Court of Claims

PETTUS v. STATE OF NEW YORK, #2009-032-146, Claim No. 116147-A, Motion No. M-76907


Synopsis



Case Information

UID:
2009-032-146
Claimant(s):
JAMES PETTUS
Claimant short name:
PETTUS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116147-A
Motion number(s):
M-76907
Cross-motion number(s):

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:
September 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, James Pettus, an inmate proceeding pro se, filed this claim on December 1, 2008 alleging that medical personnel at Southport Correctional Facility improperly discontinued his prescription pain medication. On June 8, 2009 this claim was dismissed upon the cross motion of Defendant State of New York for claimant’s failure to serve the claim upon it by certified mail, return receipt requested as required by Court of Claims Act § 11 (a) (Pettus v State of New York, Claim No. 116147, CM-76354, Hard, J.).


Claimant now moves to “reinstate” his claim and allow him to serve the claim upon Defendant by the proper method and for an order instructing the Clerk of the Court to supply him with a copy of the claim so that he may cure his prior defective service. Defendant, by letter, informs the Court that it was not served with a copy of the motion and, accordingly, urges the Court to deny said motion.

As stated in this Court’s prior decision, Claimant’s failure to properly serve the instant claim upon the Attorney General constituted a “fatal jurisdictional defect” which “deprive[d] 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])” (id. at 2). As such, the Court is certainly without power to restore the duly dismissed claim for the same reason set forth above. Claimant’s remedy, if at all, would lie by way of an appeal or, if still within his time, an application for permission to file a late claim pursuant to Court of Claims Act § 10 (6) with an appropriate analysis of the statutory factors. It cannot be accomplished by way of a motion to restore the dismissed claim. Accordingly, Claimant’s motion is denied in all respects.




September 21, 2009
Albany, New York

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


Papers Considered:


1. Affidavit of James Pettus, sworn to June 22, 2009, filed June 25, 2009;

2. Notice of Petition, with annexed affidavit of James Pettus, sworn to July 8, 2009, filed

July 13, 2009;

3. Letter in opposition of Roberto Barbosa, Esq., AAG, received August 5, 2009.