The following papers were read and considered by the Court on this motion:
Defendant’s Notice of Motion, Defendant’s Affirmation in Support
with annexed Exhibits A-B, Claimant’s Motion to Withdraw and the filed
Claim. Defendant, the State of New York, has brought this motion pursuant to
Court of Claims Act (CCA) §§ 10 and 11 as well as Civil Practice Law
and Rules 3211 seeking an order dismissing the claim. In response claimant,
Douglas Percoco, a pro se litigant has filed a motion to withdraw his
Claimant filed his claim on April 11, 2008 in which he alleged various
allegations of wrongdoing committed by three New York State Supreme Court
Judges. The underlying facts of the claim appear to arise from legal
proceedings involving claimant and his ex-wife. The specific events outlined in
the claim occurred on October 4, 1989, February 22, 2001 and October 4, 2004.
Defendant argues that the claim was improperly served on the Office of the
Attorney General on two separate occasions. On the first occasion the claim was
served by regular mail without a verification. Defendant submitted a copy of
the unverified claim, together with a copy of the envelope evincing postage in
the amount of forty-one cents. On the second occasion the verified claim was
received by DHL Express Mail delivery. Defendant submitted a copy of the DHL
Court of Claims Act § 11 (a)(i) provides that a copy of the claim
“shall be served upon the attorney general within the times hereinbefore
provided for filing with the clerk of the court either personally or by
certified mail, return receipt requested.” The filing and service
requirements contained in the Court of Claims Act § 11 are jurisdictional
in nature and therefore must be strictly construed (Finnerty v New York State
Thruway Authority, 75 NY2d 721 ). In this case, the requirement that
defendant be served in accordance with Court of Claims Act § 11 was not met
as the claim was first served by ordinary mail and then by express mail. Since
the use of ordinary mail or express mail to serve the claim upon the Attorney
General is insufficient to acquire jurisdiction over defendant (Turley v
State of New York, 279 AD2d 819 [3d Dept 2001]; Martinez v State of New
York, 282 AD2d 580 [2d Dept 2001]), the Court is deprived of
Defendant also seeks dismissal of the claim based upon claimant’s failure
to timely file the claim within ninety days of the date the action accrued.
Court of Claims Act §§ 10(3) and 10(3-b) provide that a claim shall
be filed within ninety days after the accrual of such claim, unless the claimant
shall within such time serve upon the attorney general a written notice of
intention to file a claim.
It is uncontroverted that a notice of intention to file a claim was not served
in this matter and that the claim was filed on April 11, 2008. Defendant
correctly argues that, given the allegations presented in the claim, the latest
date claimant’s action could have accrued was October 4, 2004 (Selkirk
v State of New York, 249 AD2d 818 [3d Dept 1998]). Thus, the Court does not
have jurisdiction over the claim based on claimant’s failure to timely
file the claim.
Finally, claimant has filed a motion to withdraw the claim wherein he states
that he is seeking to discontinue the action.
Therefore, for the foregoing reasons, defendant’s motion to dismiss the
claim is granted.