| Moulden v White |
| 2008 NY Slip Op 02337 [49 AD3d 1250] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Rachelle Moulden, Respondent, v Ronald White, as RegionalDirector, New York State Division of Parole, Appellant, et al.,Defendants. |
—[*1] John D. Wieser, Getzville, for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), enteredOctober 27, 2006. The order denied the motion of defendant Ronald White, Regional Director,New York State Division of Parole, for summary judgment.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the complaint is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for violations of herconstitutional rights and intentional infliction of emotional distress arising from an incident inwhich employees of the New York State Division of Parole (Division) executed an arrest warrantupon her husband and seized photographs following a search of the residence of plaintiff and herhusband. We previously affirmed an order that granted the motion of the defendants, with theexception of defendant-appellant herein (defendant), seeking dismissal of the complaint againstthem (Moulden v White, 45 AD3d1495 [2007]). Defendant appeals from an order denying his motion for summary judgmentdismissing the complaint, but he contends for the first time on appeal that he is entitled todismissal of the complaint because Supreme Court lacked subject matter jurisdiction (seeCPLR 3211 [2]). "[A] court's lack of subject matter jurisdiction is not waivable, [however],but 'may be [raised] at any stage of the action' " (Matter of Fry v Village of Tarrytown, 89NY2d 714, 718 [1997], quoting Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324[1889]), and we agree with defendant that Supreme Court lacked subject matter jurisdiction.
Pursuant to Executive Law § 259-q (2), "[a]ny claim for damages arising out of any actdone or the failure to perform any act within the scope of the employment and in the discharge ofthe duties of any officer or employee of the [D]ivision shall be brought and maintained in thecourt of claims as a claim against the state." Defendant is correct that subdivisions (1) and (2) ofExecutive Law § 259-q and Correction Law § 24 are identically worded, and weconclude that the former statute has the same effect with respect to employees of the Division asthe latter statute has with respect to employees of the Department of Correctional Services(DOCS). We thus conclude that, just as "Correction Law § 24 . . . creates anexclusive forum for plaintiffs [*2]seeking redress of claims [forconduct by DOCS employees] against the state—the Court of Claims" (Haywood v Drown, 9 NY3d 481,490 [2007]), Executive Law § 259-q likewise creates an exclusive forum for plaintiffsseeking redress of claims for conduct by employees of the Division. In addition to the identicalwording in the two statutes, we note that the Division was originally under the aegis of DOCS,and its employees were bound by Correction Law § 24. Executive Law § 259-q wasimplemented at the time that the Division was administratively transferred to the control of theExecutive Department (see L 1977, ch 904, §§ 4-17), and the statutecontinues to bar actions brought in Supreme Court against employees of the Division.Furthermore, pursuant to the express language of Executive Law § 259-q (7), claimsagainst employees of the Division that arose prior to the effective date of section 259-q weregoverned by Correction Law § 24. We thus conclude that, pursuant to Executive Law§ 259-q, Supreme Court lacked subject matter jurisdiction, and we dismiss the complaint.Present—Smith, J.P., Centra, Peradotto and Green, JJ.