Opinion
2017–04012 Index No. 5717/16
04-24-2019
Marko BYVALETS, Appellant, v. STATE of New York, Respondent.
Marko Byvalets, Brooklyn, NY, appellant pro se. Letitia James, Attorney General, New York, N.Y. (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.
Marko Byvalets, Brooklyn, NY, appellant pro se.
Letitia James, Attorney General, New York, N.Y. (Andrew W. Amend and Mark H. Shawhan of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER In an action to recover damages for the alleged unlawful acts of a Justice of the Supreme Court during certain divorce proceedings, the plaintiff appeals from an order of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated March 15, 2017. The order denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a)(1) to vacate a prior order of the same court dated January 25, 2017, granting the defendant's motion pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction upon the plaintiff's failure to appear at 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 a Justice of the Supreme Court during the plaintiff's divorce proceeding. The defendant made a pre-answer motion pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction. In an order dated January 25, 2017, the Supreme Court granted the defendant's motion upon the plaintiff's failure to appear at oral argument. The plaintiff then moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the order dated Janaury 25, 2017, and to restore the action to the trial calendar. In an order dated March 15, 2017, the court denied the plaintiff's motion. The plaintiff appeals.
To vacate the order dated January 25, 2017, which was entered upon the plaintiff's failure to appear at oral argument on the defendant's motion, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious opposition to the defendant's motion pursuant to CPLR 3211(a)(2) to dismiss the complaint for lack of subject matter jurisdiction (see World O World Corp. v. Anoufrieva , 163 A.D.3d 610, 611, 79 N.Y.S.3d 633 ; Navarrete v. Metro PCS , 137 A.D.3d 1230, 1231, 27 N.Y.S.3d 397 ; Kramarenko v. New York Community Hosp. , 134 A.D.3d 770, 772, 20 N.Y.S.3d 635 ). The plaintiff failed to demonstrate a potentially meritorious opposition to the defendant's motion. The Court of Claims has exclusive jurisdiction over actions for money damages against State agencies, departments, officials, and employees acting in their official capacity in the exercise of governmental functions (see Morell v. Balasubramanian , 70 N.Y.2d 297, 300, 520 N.Y.S.2d 530, 514 N.E.2d 1101 ; Schaffer v. Evans , 57 N.Y.2d 992, 994, 457 N.Y.S.2d 237, 443 N.E.2d 485 ; Sinhogar v. Parry , 53 N.Y.2d 424, 431, 442 N.Y.S.2d 438, 425 N.E.2d 826 ; Matter of Peterson v. New York City Dept. of Envtl. Protection , 66 A.D.3d 1027, 1028, 887 N.Y.S.2d 269 ; Dinerman v. NYS Lottery , 58 A.D.3d 669, 870 N.Y.S.2d 792 ). The claims in this case arise from acts performed, and determinations made, by a State official in the course of her official duty (see Dinerman v. NYS Lottery , 58 A.D.3d at 669, 870 N.Y.S.2d 792 ), and therefore, the Supreme Court has no jurisdiction over the plaintiff's action. Since the plaintiff failed to demonstrate a potentially meritorious opposition to the defendant's motion, we need not determine whether he demonstrated a reasonable excuse for his default.
MASTRO, J.P., BALKIN, LASALLE and CONNOLLY, JJ., concur.