R & T Holding Corp. v Commack Realty, Inc.

R & T Holding Corp. v Commack Realty, Inc. 2006 NY Slip Op 04994 [30 AD3d 544] Decided on June 20, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
THOMAS A. ADAMS, J.P.
GLORIA GOLDSTEIN
STEVEN W. FISHER
ROBERT A. LIFSON, JJ.
2005-08619 DECISION & ORDER

[*1]R & T Holding Corp., appellant,

v

Commack Realty, Inc., respondent. (Index No. 26873/04)




Mark E. Nadjar, P.C., Huntington, N.Y., for appellant.
John G. Poli III, P.C., Northport, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Burke, J.), entered January 5, 2005, which denied its motion pursuant to CPLR 325 to remove this action from District Court to the Supreme Court, and, upon removal, pursuant to CPLR 3025(b) for leave to serve an amended complaint increasing the ad damnum clause and adding causes of action based on specific performance and unjust enrichment.

ORDERED that the order is affirmed, with costs.

Under the circumstances, the Supreme Court providently exercised its discretion in denying the plaintiff's motion. The plaintiff failed to demonstrate that this action was "mistakenly" commenced in the District Court (see CPLR 325[a]) or that she is entitled to money damages in an amount that the District Court was without jurisdiction to award (see CPLR 325[b]; Cohen v Kim, 23 AD3d 602; Barsoum v Wilson, 255 AD2d 537, 537-538; Lopez v Alexander, 251 AD2d 297; Gambino v Swan, 152 AD2d 620, 621).
ADAMS, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court