Summary
In Mark, plaintiff sued for personal injuries sustained in a motor vehicle accident with the defendant, an employee of the State Department of Correctional Services who was transporting prisoners in a state-owned van.
Summary of this case from Ismail v. SinghOpinion
March 23, 1995
Appeal from the Supreme Court, Orange County (Owen, J.).
Plaintiffs commenced this action for damages for personal injuries which they claim plaintiff Evelyn Mark sustained when a collision occurred between the parties' motor vehicles. After a jury trial in Supreme Court, judgment was entered in favor of plaintiffs in the principal amount of $110,000.
By a postjudgment motion, defendant sought to set aside the judgment and to dismiss plaintiffs' complaint because defendant was employed by State Department of Correctional Services and at the time of the accident was operating a van owned by the State which was then transporting prison inmates. The legal basis for defendant's motion is Correction Law § 24, which relevantly provides that: "2. Any claim for damages arising out of any act done * * * within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state."
Defendant argues that by virtue of this provision, plaintiffs are relegated to an action in the Court of Claims. Supreme Court disagreed with defendant and held that defendant's performance of duty at the time of the accident did not fall within the strictures of Correction Law § 24 (2). Defendant's motion was denied and defendant appeals. We affirm on the authority of Morell v. Balasubramanian ( 70 N.Y.2d 297, 301-303), which we deem controlling (see, Martin v. Baughman, 205 A.D.2d 966).
Cardona, P.J., Mikoll, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.