New York State Court of Claims

New York State Court of Claims

SELBY v. THE STATE OF NEW YORK, #2007-038-534, Claim No. 113128, Motion Nos. M-72876, M-72977


Claim against New York City Police Department granted for lack of subject matter jurisdiction. Claimant’s motion for removal or transfer pursuant to CPLR 325 (b) denied.

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):
M-72876, M-72977
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Ellen Matowik Russell, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 11, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim seeks monetary damages for claimant’s personal property that was allegedly lost following his arrest by a detective of the New York City Police Department. Defendant moves to dismiss the claim on jurisdictional grounds. Claimant opposes the motion, and makes a motion seeking an “order of removal pursuant to CPLR 325 (b),” transferring the claim to an unspecified court.

All of the allegations in the claim are addressed to the conduct of the New York City Police Department and one of its detectives. This Court’s subject matter jurisdiction is limited to claims against the State of New York, its employees, and other entities not relevant to this claim (see Court of Claims Act § 9). Neither the New York City Police Department or its detective are entities or individuals for whose acts the State may be held liable (see Fisher v State of New York, 10 NY2d 60 [1961]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Murph v State of New York, 98 Misc 2d 324, 326 [Ct Cl 1979]), and the claim makes no allegations against any party for whom the State might be liable. Accordingly, the Court lacks subject matter jurisdiction over this claim, and it must be dismissed (see Maldonado v State of New York, UID # 2006-030-517, Claim No. 111085, Motion No. M-70935, Scuccimarra, J. [Feb. 22, 2006]; Lyons v State of New York, UID # 2004-030-904, Claim No. 108030, Motion Nos. M-67647, CM-67720, Scuccimarra, J. [Feb. 18, 2004]; Jones v State of New York, UID # 2001-014-529, Motion No. M-62917, Nadel, J. [Apr. 10, 2001]; Briggs v State of New York, UID # 2000-016-094, Claim No. 102848, Motion No. M-62525, Marin, J. [Nov. 2, 2000]).

In seeking an order of removal, claimant apparently intends for this Court to transfer this claim to another court that has subject matter jurisdiction over it. However, CPLR 325 (b), upon which claimant relies, does not authorize this Court to order a transfer, but rather authorizes another court that has jurisdiction over the matter to remove the claim or action to itself (see Grimaldi v Graziano, 48 Misc 2d 54, 55 [Sup Ct 1965], affd 24 AD2d 1080 [2d Dept 1965]). Indeed, CPLR 325 is a codification of the authority to transfer actions or proceedings that is constitutionally vested in various courts (see NY Const., Art. VI, § 19), and the authority to transfer actions or proceedings is not among the powers granted to the Court of Claims (see Maric Mechanical, Inc. v State of New York, 145 Misc 2d 287, 292 [Ct Cl 1989]). Thus, claimant’s request for an order of removal or transfer of this claim cannot be granted.

Accordingly, defendant’s motion to dismiss is GRANTED, claimant’s motion for removal is DENIED, and Claim No. 113128 is hereby DISMISSED.

May 11, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered

(1) Notice of Motion, dated January 23, 2007;

(2) Affirmation of Ellen Matowik Russell, AAG, dated January 23, 2007, with exhibit A;

(3) Claimant’s Notice of Motion, dated February 18, 2007;

(4) “Affidavit” of Maurice Selby, dated February 18, 2007;

(5) Affirmation in Opposition of Ellen Matowik Russell, AAG, dated March 2, 2007,

with exhibit.