Removal from Civil to Supreme and why you should serve with NOE

Hart v New York City Hous. Auth., 2018 NY Slip Op 03123 [2d Dept. 2018]

Since the defendant was not served with a proper notice of entry, the defendant's time to appeal never commenced running, and its notice of appeal was therefore timely filed (see CPLR 5513[a]; Matter of Oliver v City of New York, 76 AD3d 1017, 1018; Nagin v Long Is. Sav. Bank, 94 AD2d 710).

A motion to remove an action from the Civil Court to the Supreme Court pursuant to CPLR 325(b) must be accompanied by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025(b) (see Martin v Waldbaum's Supermarket, 172 AD2d 804). Here, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In the absence of an application to increase the ad damnum clause, the plaintiff's motion to remove the action to the Supreme Court should have been denied (see id.; Francilion v Epstein, 144 AD2d 633, 633-634). [*2]Accordingly, we remit the matter to the Supreme Court, Kings County, to restore the matter to the Civil Court, Kings County.

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