New York State Court of Claims

New York State Court of Claims

COLEMAN v. THE CITY OF NEW YORK, #2009-047-001, Claim No. 114159, Motion Nos. M-76142, M-76351


Claimant pro se seeks to recover damages upon theories of false imprisonment, malicious prosecution and other intentional torts. Upon review of the file which contained no affidavit of service or answer, the Court issued an Order to Show Cause directing the parties to submit written statements relating to service of the claim. The defendant State of New York's motion to dismiss on jurisdictional grounds is granted as the claim was not timely served upon the Attorney General within the time prescribed by section 10 (3-b) of the Court of Claims Act and the Court's Order to Show Cause is dismissed as academic.

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-76142, M-76351
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
By: Gwendolyn Hatcher, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 22, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were considered by the Court on the disposition of the Court’s Order to Show Cause marked returnable March 5, 2009 and adjourned to March 26, 2009, and defendant’s pre-answer motion to dismiss which have been consolidated for purposes of disposition:

1. Order to Show Cause, dated January 14, 2009;
2. Letter from David Coleman, claimant, dated December 28, 2008;
3. Pre-Answer Notice of Motion, dated March 3, 2009 and filed March 5, 2009, and Affirmation in Support of Motion of Gwendolyn Hatcher, Assistant Attorney General, dated March 3, 2009, with annexed Exhibit A.
4. Letter from David Coleman, claimant, dated January 28, 2009.

Claimant David Coleman (claimant) filed a claim with the Court of Claims on August 29, 2007, alleging false imprisonment, malicious prosecution, and other intentional torts, naming the

City of New York as defendant. In his claim, claimant alleges further that the claim accrued on

December 29, 2006. Defendant did not file an answer to the claim, and upon review of the claim and its appended papers, the Court determined that there was no affidavit of service of the claim upon the Attorney General. The Court then issued an Order to Show Cause, dated January 14, 2009, directing the parties to submit a statement in writing relating to service of the claim.

Defendant State of New York by motion filed March 5, 2009, moves to dismiss the claim pursuant to CPLR § 3211 on jurisdictional grounds. Although the claimant has communicated with the Court since the filing of his claim keeping the Chief Clerk of the Court of Claims apprised of any change of address (see 22 NYCRR § 206.6 [f]), claimant has not submitted any papers in opposition, nor has he contacted the Court in any manner with respect to these motions.

In the first instance, the claimant does not name the State of New York or a State agency as a party defendant in the case caption thereby suggesting that the Court does not have subject matter jurisdiction over the claim (see generally Court of Claims Act § 9). However, since the Attorney General is not seeking dismissal on this ground, but simply notes that the City of New York is an improperly named defendant, the caption will be amended to reflect the State of New York as the only proper party defendant.

It is well settled that the Court of Claims does not obtain subject matter jurisdiction unless a notice of intention to file is timely served or a claim is timely filed and served (see Court of Claims Act §10 [3-b]; Matter of Best v State of New York, 42 AD3d 699, 700 [3d Dept. 2007]; Rivera v State of New York, 5 AD3d 881 [3d Dept. 2004]). Assuming an accrual date of December 29, 2006, claimant was required to serve a notice of intention, or serve and file the claim itself, within ninety days, or by March 29, 2007 (see Court of Claims Act § 10 [3-b]). Court of Claims Act § 11 (a) provides that the claim must be served personally or by certified mail, return receipt requested, upon the attorney general within the times prescribed in Court of Claims Act § 10, and that service is complete when it is received in the Attorney General’s Office (Court of Claims Act § 11 [a] [i]).

A review of the record reveals that no notice of intention was served and the claim was not filed and served until eight (8) months after the accrual of the claim. In addition, the affidavit of service annexed to the defendant’s motion papers indicates that service of the claim was not made upon the Attorney General until February 9, 2009, more than two years after accrual of the claim. Accordingly, the Court lacks jurisdiction over the claim, and it is

ORDERED, that the caption is amended to reflect the proper defendant and shall read as follows:




Claim No. 114159




The Clerk of the Court is directed to amend the records accordingly; and it is further

ORDERED, that Motion No. M-76351 is granted and Claim No. 114159 is dismissed; and it is further

ORDERED, that Motion No. M-76142 is dismissed as academic.

April 22, 2009
New York, New York

Judge of the Court of Claims