| Byvalets v State of New York |
| 2019 NY Slip Op 03021 [171 AD3d 1125] |
| April 24, 2019 |
| Appellate Division, Second Department |
[*1]
| Marko Byvalets, Appellant, v State of New York,Respondent. |
Marko Byvalets, Brooklyn, NY, appellant pro se.
Letitia James, Attorney General, New York, NY (Andrew W. Amend and Mark H. Shawhanof counsel), for respondent.
In an action to recover damages for the alleged unlawful acts of a Justice of the SupremeCourt during certain divorce proceedings, the plaintiff appeals from an order of the SupremeCourt, Kings County (Dawn Jimenez-Salta, J.), dated March 15, 2017. The order denied theplaintiff's motion, in effect, pursuant to CPLR 5015 (a) (1) to vacate a prior order of the samecourt dated January 25, 2017, granting the defendant's motion pursuant to CPLR 3211 (a) (2) todismiss the complaint for lack of subject matter jurisdiction upon the plaintiff's failure to appearat oral argument, and to restore the action to the trial calendar.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for the alleged unlawful acts of aJustice of the Supreme Court during the plaintiff's divorce proceeding. The defendant made apre-answer motion pursuant to CPLR 3211 (a) (2) to dismiss the complaint for lack of subjectmatter jurisdiction. In an order dated January 25, 2017, the Supreme Court granted thedefendant's motion upon the plaintiff's failure to appear at oral argument. The plaintiff thenmoved, in effect, pursuant to CPLR 5015 (a) (1) to vacate the order dated January 25, 2017, andto restore the action to the trial calendar. In an order dated March 15, 2017, the court denied theplaintiff's motion. The plaintiff appeals.
To vacate the order dated January 25, 2017, which was entered upon the plaintiff's failure toappear at oral argument on the defendant's motion, the plaintiff was required to demonstrate areasonable excuse for his default and a potentially meritorious opposition to the defendant'smotion pursuant to CPLR 3211 (a) (2) to dismiss the complaint for lack of subject matterjurisdiction (see World O World Corp. vAnoufrieva, 163 AD3d 610, 611 [2018]; Navarrete v Metro PCS, 137 AD3d 1230, 1231 [2016]; Kramarenko v New York CommunityHosp., 134 AD3d 770, 772 [2015]). The plaintiff failed to demonstrate a potentiallymeritorious opposition to the defendant's motion. The Court of Claims has exclusive jurisdictionover actions for money damages against State agencies, departments, officials, and employeesacting in their official capacity in the exercise of governmental functions (see Morell vBalasubramanian, 70 NY2d 297, 300 [1987]; Schaffer v Evans, 57 NY2d 992, 994[1982]; Sinhogar v Parry, 53 NY2d 424, 431 [1981]; Matter of Peterson v New York City Dept. of Envtl. Protection, 66AD3d 1027, 1028 [2009]; Dinerman v NYS Lottery, 58 AD3d 669 [2009]). The claims in thiscase arise from acts performed, and determinations made, by a State official in the course of herofficial duty (see Dinerman v NYS Lottery, 58 AD3d at 669), and therefore, the SupremeCourt has no jurisdiction over the plaintiff's action. Since the plaintiff failed to demonstrate apotentially meritorious opposition to the defendant's motion, we need not determine whether hedemonstrated a reasonable excuse for his default. Mastro, J.P., Balkin, LaSalle and Connolly, JJ.,concur.