Tenth Ave. Car Wash, LLC v Ensign Petroleum Equip. Co.

[*1] Tenth Ave. Car Wash, LLC v Ensign Petroleum Equip. Co. 2006 NY Slip Op 51546(U) [12 Misc 3d 1193(A)] Decided on May 18, 2006 Supreme Court, New York County Diamond, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2006
Supreme Court, New York County

Tenth Avenue Car Wash, LLC d/b/a Chelsea Car Wash, Plaintiff,

against

Ensign Petroleum Equipment Company et al., Defendants.



101133/06

Marylin G. Diamond, J.

The plaintiff operates a gas station on Tenth Avenue in Manhattan. In November, 1998, it purchased pipelines for its gasoline pumps which were allegedly manufactured, installed, sold and/or supplied by the defendants. In or about June, 2001, plaintiff discovered that there were several pinholes in the pipes which allowed gasoline to leak. Plaintiff alleges that it thereafter incurred damages in having to pay for the repair of the pipes and in lost profits resulting from being forced to temporarily shut down the facility. In June, 2004, plaintiff brought an action against the defendants in Civil Court, New York County seeking to recover these damages. The complaint asserted causes of action for negligence and breach of warranty. Although the Civil Court's jurisdictional limit for the recovery of money is $25,000, see Civil Court Act § 202, the ad damnum clause sought damages in the amount of $40,000.

Approximately 20 months after commencing its action in Civil Court, the plaintiff has now moved, pursuant to CPLR 325(a), for an order transferring the case from Civil Court to this court and for leave to serve an amended complaint increasing the ad damnum clause to $80,000. According to plaintiff, the increase in the ad damnum clause is attributable to the recent discovery that soil on the gas station premises was contaminated by the 2001 leak and that remediation is therefore required. The plaintiff claims that the transfer of the action to this court is necessary and appropriate because it made a mistake in initially bringing the action in Civil Court since it originally sought an amount in excess of Civil Court's jurisdiction and because the increased damages it now seeks has placed the case even farther beyond Civil Court's jurisdiction.

CPLR§325(a) provides that where a mistake was made in the choice of the court in which an action was commenced, the Supreme Court, upon motion, may remove the action to the proper court. See Hooper v. Commissioner of Taxation & Finance, 224 AD2d 733 (3rd Dept. 1996); Hellman v. Ploss, 46 AD2d 658 (2nd Dept. 1974). Here, the plaintiff's assertion that it mistakenly brought its action in Civil Court and that the $40,000 ad damnum clause in its original complaint accurately reflected the actual damages which it then believed it had incurred is belied by the fact that it litigated its action in Civil Court for more than a year and a half [*2]despite that court's $25,000 jurisdictional limit and did not seek removal to this court until it allegedly discovered that it had incurred additional expenses by reason of the fuel leakage. In view of the plaintiff's evident belief that it was entirely appropriate to litigate its claims in Civil Court until it discovered that its soil had been contaminated and the absence from the record before this court of any evidence supporting its initial claim of having incurred $40,000 in damages, the court is not persuaded that, exclusive of its claimed remediation costs, the plaintiff has actually incurred damages which exceed the jurisdictional limit of the Civil Court. Since the plaintiff has thus failed to establish that it mistakenly brought its action in Civil Court, it is not entitled to remove the action to this court pursuant to CPLR 325(a).

The plaintiff's application for removal should, in fact, have been brought pursuant to CPLR 325(b). Under CPLR 325(b), an action may be removed from a court which does not have jurisdiction to grant the relief to which the parties are entitled to a court which does such jurisdiction. This provision is typically invoked by a party, such as the plaintiff herein, which seeks to remove a case from a court of limited jurisdiction by concomitantly moving for leave to serve an amended complaint increasing the ad damnum clause. See Barsoum v. Wilson, 255 AD2d 537 (2nd Dept 1998); Gambino v. Swan, 152 AD2d 620 (2nd Dept 1989). In order to establish its entitlement to such relief, a plaintiff must demonstrate the merits of its case, the reason for its delay in asserting its present claims and that the increase in damages resulted from facts that only recently came to its attention. See Barsoum v. Wilson, 255 AD2d at 537; Gambino v. Swan, 152 AD2d at 620.

Here, the plaintiff has failed to provide a reasonable excuse for its delay in asserting its claim that leakage from the pipes at issue contaminated the soil on its premises. As already noted, the plaintiff discovered in or about June, 2001 that gasoline was leaking from its pipes. Clearly, the soil had already been contaminated by the time that the leaks were discovered and repaired. Nevertheless, more than four years elapsed before this contamination was discovered. In the absence of any explanation offered by the plaintiff, the court can only conclude that the plaintiff's failure to discover the contamination of its soil until only recently was attributable to its negligence in failing to retain someone to test the soil or, if it retained any such party, to that party's negligence. In either case, the delay is inexcusable. Moreover, the court is persuaded that this inordinate delay is necessarily prejudicial to the defense. See Barsoum v. Wilson, 255 AD2d at 537. Under the circumstances, it would be inappropriate to grant the requested relief.

Accordingly, the plaintiff's motion is hereby denied in its entirety.

The Clerk Shall Enter Judgment Herein



Dated: 5-18-06 MARYLIN G. DIAMOND, J.S.C.