671 N.Y.S.2d 362 | N.Y. App. Div. | 1998
—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion to dismiss the complaint for lack of subject matter jurisdiction. Plaintiff and defendant were pilots with the 174th Fighter Wing of the New York Air National Guard. Plaintiff alleged, inter alia, that defendant subjected him to various acts of sexual harassment. Accepting plaintiffs factual allegations as true and according plaintiff the benefit of every possible favorable inference (see, Leon v Martinez, 84 NY2d 83, 87-88), we conclude that plaintiffs alleged injuries arose “out of or [were] in the course of activity incident to [military] service” (Feres v United States, 340 US 135, 146). This action, sounding in intentional tort, therefore is barred by the intramilitary immunity doctrine, which bars actions by one member of the military against another (see, Stauber v Cline, 837 F2d 395, cert denied 488 US 817, reh denied 488 US 975). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.— Dismiss Pleading.) Present — Pine, J. P., Lawton, Hayes, Wisner and Boehm, JJ.
