Bing v Fairfield Presidential Mgt. Corp

[*1] Bing v Fairfield Presidential Mgt. Corp 2004 NY Slip Op 51297(U) Decided on October 29, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 29, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: October 29, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., PATTERSON and GOLIA, JJ.
2003-1689 K C

LANCE BING, Respondent,

against

FAIRFIELD PRESIDENTIAL MANAGEMENT CORP, a/k/a PRESIDENTIAL FAIRFIELD CORP, Appellant, -and- FAIRFIELD TOWERS CONDOMINIUM a/k/a FAIRFIELD PRESIDENTIAL ASSOCIATES, Defendant.

Appeal by defendant Fairfield Presidential Management Corp, a/k/a Presidential Fairfield Corp from an order of the Civil Court, Kings County (E. Prus, J.), entered on July 25, 2003, denying its motion to dismiss the complaint.

Order unanimously reversed without costs and appellant's motion to dismiss the
complaint granted unless, within 30 days of the date of the order entered hereon,
plaintiff serves and files in the court below a written stipulation, signed by him, consenting to reduce the ad damnum clause of his complaint so as to bring the cause of action within the court's jurisdiction; in the event that plaintiff so stipulates, the order is affirmed without costs.

Inasmuch as plaintiff's endorsed complaint stated but one cause of action seeking damages exceeding the $25,000 monetary jurisdictional limit of the court (CCA 202), the Civil [*2]Court lacked subject matter jurisdiction. Thus, the order is reversed and appellant's motion to dismiss the complaint granted unless plaintiff stipulates to reduce the ad damnum clause so as to bring his claim within the Civil Court's jurisdictional limit (see Siegel, NY Prac § 23, at 23-24 [3d ed]; Simmons v Simmons, 2 Misc 3d 536 [2003]; B & R Textiles Corp. v Empire Bias Binding Co., 126 Misc 2d 965 [1985]). We note that a court cannot, on its own, reduce the amount sought in a complaint in order to bring the case within the court's jurisdictional limit (see Simmons v Simmons, 2 Misc 3d 536, supra).

We further note that another option available to the plaintiff is provided by CPLR 205 (a). In the event that this action is dismissed for lack of subject matter jurisdiction, plaintiff has six months from the date of dismissal to recommence his action regardless of the running of the statute of limitations (see CPLR 205 [a]; Alexander, Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C205:3, at 482; Parker v Mack, 61 NY2d 114 [1984]).

Although the state constitution authorizes the Civil Court to transfer a case which is beyond its subject matter jurisdiction to the Supreme Court so long as the case was not previously transferred to it by the Supreme Court (NY Const, art VI, § 19 [f]), and it may do so upon motion of the plaintiff (Simmons v Simmons, 2 Misc 3d 536, supra), or upon its own motion (B & R Textiles Corp. v Empire Bias Binding Co., 126 Misc 2d 965 supra; Kemper v Transamerica Ins. Co., 61 Misc 2d 7 [1969]), plaintiff has not sought such a transfer, and a sua sponte transfer is beyond the purview of this appeal.
Decision Date: October 29, 2004