New York State Court of Claims

New York State Court of Claims

SCOPPA v. THE STATE OF NEW YORK, #2006-032-051, Claim No. 111724, Motion No. M-71395


Case Information

1 1.The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action has been amended by the Court, sua sponte, to indicate that the State of New York is the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
John A. Scoppa, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 16, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves this Court to dismiss the claim pursuant to CPLR 3211, for lack of subject matter and personal jurisdiction.

In this action, claimant's sparse allegations state that on October 11, 2002, State Police seized certain personal property from his residence. The property was held pending a criminal trial and an employee disciplinary arbitration. Ultimately, claimant was reinstated to his position in the Department of Corrections in September 2005. On October 25, 2005, he filed a claim with the Fishkill Correctional Facility seeking the return of his property, stating that he learned that the Department of Corrections had possession of his property. In December 2005, he filed this claim seeking damages related to his property loss and "reimbursement for legal expenses related to this incident". Defendant now moves to dismiss the claim arguing that the claim is untimely inasmuch as it accrued, at the very latest, on September 26, 2005, and claimant did not serve defendant until February 6, 2006.

Court of Claims Act § 10 (3) provides that negligence claims against the State must be "filed and served upon the [A]ttorney [G]eneral within 90 days after the accrual of such claim, unless the claimant shall within such time serve upon the [A]ttorney [G]eneral a written notice of intention to file a claim" (id). Failure to comply with this jurisdictional requirement is fatal to the claim (see e.g. Conner v State of New York, 268 AD2d 706, 707 [3d Dept 2000]). A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable

(see Augat v State of New York, 244 AD2d 835, 836 [3d Dept 1997]). Here, the claim accrued when claimant was reinstated on September 26, 2005 and his property was not returned to him. Although claimant filed his claim on December 9, 2005, he did not serve defendant until February 6, 2006. Such service was not completed within the 90-day period. Claimant argues that he sought advice from the Department of Administration as to how to obtain his property and he was told to file an employee claim, which he did. Claimant further argues that it was not until December 2005 that he was told that he needed to file a claim in the Court of Claims, which he did a few days later.

Claimant's argument is in essence an attempt to estop defendant from asserting the jurisdictional defense. The doctrine of "estoppel is [ordinarily] not available against a public agency in the exercise of its governmental functions" (Matter of Wolfstich v New York State Tax Comm., 106 AD2d 745, 748 [3d Dept 1984]). Estoppel is available in limited circumstances such as when an agency acts "wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v New York City Health & Hospitals Corp., 38 NY2d 662, 668 [1976]). Here, even if the Court credits claimant's version, there is no basis for determining that claimant was entitled to obtain, much less rely, upon legal advice given by an employee of the Department of Administration. As a pro se litigant, claimant represented himself at his own risk and acquired no greater rights than other litigants (see, e.g. Matter of Mosso v Mosso, 6 AD3d 827, 828 [3d Dept 2004]). Thus, the claim must be dismissed. Claimant may, of course, seek permission to file a late claim.[2]

Accordingly, defendant's motion M-71395 is granted and the claim is dismissed.

June 16, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed March 2, 2006;

2. Affidavit of Michael C. Rizzo sworn to February 27, 2006; Exhibit A annexed;

3. Letter of John A. Scoppa sworn to March 20, 2006.

[2].Claimant is encouraged to review the Court's website located at to assist him.