Mark v. Vasseur

Appeal (transferred to this Court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Owen, J.), entered May 17, 1993 in Orange County, which denied defendant’s motion to vacate a judgment in favor of plaintiffs.

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 NY2d 297, 301-303), which we deem controlling (see, Martin v Baughman, 205 AD2d 966).

*928Cardona, P. J., Mikoll, White and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.