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.


Caffrey v North Arrow Abstract & Settlement Servs., Inc., 2018 NY Slip Op 01043 [2nd Dept 2018]

We address two related issues concerning subject matter jurisdiction that have not previously been addressed by our Court. The first is whether a court with subject matter jurisdiction, which pursuant to CPLR 325(d) has erroneously transferred an action to a lower court lacking subject matter jurisdiction to adjudicate the matter, may retransfer the action to itself after the lower court has already tried the matter and rendered a judgment. The second question is whether, upon a retransfer of the action to a court with subject matter jurisdiction pursuant to CPLR 325(b), the court may adopt the findings of fact and conclusions of law of the lower court and thereupon substitute the lower court's judgment with its own judgment. We answer the first question in the affirmative and the second question in the negative.

* * *

We have considered, but reject, the notion that Judge Marrazzo had "in effect" self-transferred the action back to Supreme Court for trial, rendering the trial and judgment jurisdictionally valid. The decision rendered after the trial reflected the Civil Court's index number (300061-2011) rather than the original index number of the Supreme Court (102525/09). An "in effect" retransfer at the time of trial is inconsistent with the filing of a posttrial judgment in the Civil Court, and inconsistent with Caffrey's later motion to retransfer the action to Supreme Court, which was contested by the parties and decided by the Supreme Court on its merits.

We suspect, giving the Civil Court the credit and good faith it is due, that the instant matter may have been selectively assigned to Judge Marrazzo, recognizing that the plaintiff's complaint interposed equitable causes of action and further recognizing that Judge Marrazzo had been granted Acting Supreme Court status. Yet, given the limiting language of that designation in the Administrative Order, we cannot hold that the Administrative Order cured the subject matter jurisdictional infirmity afflicting the action as a result of its erroneous transfer to the Civil Court under CPLR 325(d). Subject matter jurisdiction is a concept that is absolute—it either exists in its entirety or it does not exist at all. A defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (see Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17; Matter of Rougeron, 17 NY2d 264, 271; Strunk v New York State Bd. of Elections, 126 AD3d 777, 779; Matter of Hart Family, LLC v Town of Lake George, 110 AD3d 1278, 1280; Burke v Aspland, 56 AD3d 1001, 1003; Morrison v Budget Rent A Car Sys., 230 AD2d 253, 260; Matter of Anthony J., 143 AD2d 668, 668-669). Similarly, defects in subject jurisdiction may never be waived (see Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220, 229; Manhattan Telecom. Corp. v H & A Locksmith, Inc., 21 NY3d at 203; Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523; Lacks v Lacks, 41 NY2d at 74-75). While Judge Marrazzo, by virtue of his designation as an Acting Justice of the Supreme Court, would have been authorized to preside over the trial of this matter had it been pending in the Supreme Court, the same cannot be said for the trial in the Civil Court where the Administrative Order had no administrative or substantive relevance.

Where subject matter jurisdiction is concerned, courts, including our own, may not cut corners. As a matter of both constitutional adherence and public policy, the Appellate Division must guard against courts acting outside of their subject matter jurisdiction, even if they do so unwittingly, in good faith, or in furtherance of judicial economy. Accordingly, we hold that the duties of an Acting Justice of the Supreme Court directed to matters pending in the Supreme Court [*7]operate only as to actions and proceedings pending in that particular court, and not for cases litigated elsewhere. In other words, a judge of the Civil Court with a limited Acting Supreme Court Justice designation has no authority in an action pending at the Civil Court to exceed the nonmonetary subject matter jurisdiction of that court, regardless of whatever more expansive authority he or she may possess for other assignments pending in the Supreme Court.

Further, since the Civil Court was without jurisdiction to try the instant matter, rendering the trial and judgment void, its findings of fact and conclusions of law cannot as a matter of comity, res judicata, law of the case, or otherwise, be recognized by the Supreme Court upon its CPLR 325(b) removal of the action, and cannot provide a basis for the Supreme Court judgment presently on appeal.

CPLR § 325

CPLR § 325

Goodwin v Rice, 2010 NY Slip Op 09103 (App. Div., 2nd 2010)

The Supreme Court and the Surrogate's Court have concurrent jurisdiction over the administration of a decedent's estate (see Cipo v Van Blerkom, 28 AD3d 602Gaentner v Benkovich, 18 AD3d 424, 428). "However, [w]herever possible, all litigation involving the property and funds of a decedent's estate should be disposed of in the Surrogate's Court'" (Cipo v Van Blerkom, 28 AD3d at 602, quotingNichols v Kruger, 113 AD2d 878, 878-879; see Hollander v Hollander, 42 AD2d 701; cf. Gaentner v Benkovich, 18 AD3d at 428). The Supreme Court, upon motion, may transfer an action to the Surrogate's Court "[w]here an action pending in the supreme court affects the administration of a decedent's estate which is within the jurisdiction of the surrogate's court" (CPLR 325[e]see NY Const, Art VI, §§ 12[f], 19[a]). The plaintiff commenced this action in her [*2]capacity as preliminary executor of the decedent's estate, and seeks to recover in this action, inter alia, funds the defendants allegedly owe to the estate. As such, determination of this action "affects the administration of the decedent's estate" (see CPLR 325[e]; Cipo v Van Blerkom, 28 AD3d at 602; Birnbaum v Central Trust Co., 156 AD2d 309, 310; Burmax Co. v B & S Indus., 135 AD2d 599, 601-602; Nichols v Kruger, 113 AD2d 878; Hollander v Hollander, 42 AD2d at 701). Moreover, transfer to the Surrogate's Court will "foster judicial economy and lead to an expedited settlement of the [decedent's] estate," as a separate action involving the estate is ongoing in Surrogate's Court (Burmax Co. v B & S Indus., 135 AD2d at 601-602; see Birnbaum v Central Trust Co., 156 AD2d at 310). Accordingly, the Supreme Court properly exercised its power under article VI, section 19(a) of the New York State Constitution to grant the defendants' cross motion pursuant to CPLR 325(e) to transfer this action to the Surrogate's Court, Nassau County (see Benjamin v Morgan Guar. Trust Co. of N.Y., 173 AD2d 373, 374; Peekskill Community Hosp. v Sayres, 88 AD2d 657).


Rare no-fault suicide decision

It really isn't a suicide decision.  I just needed a title so I could test out the post by email thing.  As it turns out, it works terribly.

Westchester Med. Ctr. v Government Empls. Ins. Co., 2010 NY Slip Op 32295(U) (Sup Ct, Nassau County 2010)

Today there was a No-Fault Appellate Term decision which is only interesting because of the dissent.

Ortho-Med Surgical Supply, Inc. v MVAIC, 2010 NY Slip Op 51526(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We'll skip straight to the dissent.

Defendant presented an affidavit from a claims representative attesting to a procedure wherein a denial is placed in an addressed envelope and then dropped in the claims department's "outgoing mail basket." According to the claims representative, the contents of the mail basket are collected daily by a mailroom employee, who then affixes postage to the envelopes and "puts it in the mailbox" for delivery by the U.S. postal service. In my opinion, such an affidavit is insufficient to demonstrate mailing, for it merely concludes that the mail is sent. Defendant's affiant did not demonstrate firsthand knowledge of the procedures of the mailroom to establish that the denial had been mailed to plaintiff (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227 [1995]). Consequently, defendant's motion for summary judgment dismissing the complaint should have been denied.

Finally, Barshay over at NFP posted an interesting decision on an OSC to consolidate and stay, among other things. [Update 9/5]  The decision made its way to the slip op site: Urban Radiology, P.C. v GEICO Ins. Co., 2010 NY Slip Op 51554(U) (Civ Ct City NY, Kings County).  And on 9/3 there was an article in the NYLJ about doing away with the 30 day rule.  It's wrongheaded, but I'll leave the discussion of that to those that cover it.