Moulden v. White

• Decision Date: 14 March 2008
• Docket Number: CA 06-03727.
• Citation: 49 A.D.3d 1250,856 N.Y.S.2d 329,2008 NY Slip Op 02337
• Parties: RACHELLE MOULDEN, Respondent, v. RONALD WHITE, as Regional Director, New York State Division of Parole, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 1250

856 N.Y.S.2d 329

2008 NY Slip Op 02337

RACHELLE MOULDEN, Respondent, v. RONALD WHITE, as Regional Director, New York State Division of Parole, Appellant, et al., Defendants.

CA 06-03727.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided March 14, 2008.

Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered October 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 law without costs and the complaint is dismissed.

Memorandum:

Plaintiff commenced this action seeking damages for violations of her constitutional rights and intentional infliction of emotional distress arising from an incident in which employees of the New York State Division of Parole (Division) executed an arrest warrant upon her husband and seized photographs following a search of the residence of plaintiff and her husband. We previously affirmed an order that granted the motion of the defendants, with the exception of defendant-appellant herein (defendant), seeking dismissal of the complaint against them (Moulden v White, 45 AD3d 1495 [2007]). Defendant appeals from an order denying his motion for summary judgment dismissing the complaint, but he contends for the first time on appeal that he is entitled to dismissal of the complaint because Supreme Court lacked subject matter jurisdiction (see CPLR 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, 89 NY2d 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 act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the [D]ivision shall be brought and maintained in the court of claims as a claim against the state." Defendant is correct that subdivisions (1) and (2) of Executive Law § 259-q and Correction Law § 24 are identically worded, and we conclude that the former statute has the same effect with respect to employees of the Division as the latter statute has with respect to employees of the Department of Correctional Services (DOCS). We thus conclude that, just as "Correction Law § 24 ... creates an exclusive forum for plaintiffs seeking redress of claims [for conduct by DOCS employees]...