New York State Court of Claims

New York State Court of Claims

PERCOCO v. THE STATE OF NEW YORK, #2008-045-027, Claim No. 115107, Motion No. M-74892


Defendant’s motion to dismiss pro se claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Douglas Percoco, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Kimberly A. Kinirons, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 claim.

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 envelope.

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 [1989]). 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 jurisdiction.

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.

June 17, 2008
Hauppauge, New York

Judge of the Court of Claims