Moise v Brown

[*1] Moise v Brown 2010 NY Slip Op 50243(U) [26 Misc 3d 1224(A)] Decided on February 18, 2010 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 8, 2010
Supreme Court, Kings County

Charles V. Moise, Plaintiff,

against

Keon K. Brown and Clarence Brown, Defendants.



825/10



Plaintiff was represented by Richard C. Bell, Esq. Defendants Keon K. Brown and Clarence Brown were each self-represented.

Jack M. Battaglia, J.

On January 12, 2010, plaintiff Charles V. Moise commenced this action against defendants Keon K. Brown and Clarence Brown, alleging that, on November 17, 2009, a motor vehicle owned by defendant Clarence Brown and operated by defendant Keon K. Brown came into contact with a motor vehicle owned and operated by Plaintiff, causing Plaintiff to be seriously injured. There is no evidence that either Defendant has been served with the Summons and Verified Complaint in this action.

By Order to Show Cause dated January 13, 2010, issued by another judge of this court, Plaintiff moves for an order, pursuant to CPLR 602, transferring to this court an action commenced by Keon K. Brown in the Small Claims Part of the Civil Court of the City of New York against Charles V. Moise(index no. SCK 7871/09), and, after transfer, consolidating the Small Claims action for joint trial with this action. The Small Claims action seeks recovery in the amount of $2,800 for property damage allegedly sustained to claimant's automobile as a result of the November 17, 2009 collision. Both Keon K. Brown and Clarence Brown appeared on the return date for the motion, unrepresented by counsel.

It is clear that this Court has the authority to grant the relief requested (see CPLR 602 [a], [b]), that the two actions involve common questions of law and fact, and that Plaintiff's motion should be granted unless to do so would prejudice a "substantial right" of Defendants. (See Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850 [2d Dept 2008]; Littman v Jacobowski, 2 AD2d 898, 899 [2d Dept 1956].) Because, as will appear, the Court concludes that a substantial right of defendant Keon K. Brown would be prejudiced by transfer and consolidation, [*2]Plaintiff's motion is denied.

"Small claims matters are subject to informal procedures which are designed to facilitate the handling of minor claims and grievances without resort to the use of counsel." (See Roundtree v Singh, 143 AD2d 995, 995 [2d Dept 1988]; see also Buonomo v Stalker, 40 AD2d 733, 733 [3d Dept 1972].) The governing statute provides that "[t]he court shall conduct hearings upon small claims in such a manner as to do substantial justice between the parties according to the rules of substantive law and shall not be bound by statutory provisions or rules of practice, procedure, pleading or evidence." (See New York City Civil Court Act § 1804.) The relaxed rules of evidence can be particularly helpful to a claimant seeking to recover for damage to an automobile as a result of a collision. (See Felipe v Das, 22 Misc 3d 141 [A], 2009 NY Slip Op 50444 [U], * 1 [App Term, 2d Dept 2009]; Miller v Sanchez, 6 Misc 3d 479 [Civ Ct, Kings County 2004].)

Although a small claims action may be transferred to the "regular part" of Civil Court (see New York City Court Act § 1805 [b]), "[i]n terms of fairness," such a transfer "should not prejudice the rights of the small claims claimant by imposing upon him the heavier burden in terms of the nature and degree of proof to make out a prima facie case." (See Victoria Kitchens, Inc. v Leiner, 138 Misc 2d 556, 560 [Civ Ct, Queens County 1988]; see also Torres v Falk, 193 Misc 2d 428, 430-31 [Rochester City Court 2002].) Professor Siegel, in fact, addresses the issue in the exact circumstances presented here:

"The simple relatedness of claims simultaneously pending in the regular and small claims parts of a court is never a ground for the removal of the small claim, else many a property damage aspect of a tort—such as an automobile accident claim—would be impeded for years by being transferred for consolidation to the regular part of the court, or to some other court, in which the personal injury aspect is pending. Hence, where P sued D for personal injuries in the regular part of the court and moved to have D's small claim against P for property damage consolidated, the motion was denied. Res judicata, as we shall see, is not the problem: no part of the adjudication made on the property damage small claim is binding on the personal injury claim, despite potentially inconsistent findings. Delay of the small claim is the problem, and the courts are sensitive to it." (David D. Siegel, New York Practice, §582 at 1011 [4th Ed] [footnotes omitted]; see also Molska v Garfield, 2 AD3d 510, 510-11 [2d Dept 2003] ["a small claims judgment is not res judicata with respect to the adjudication of any fact at issue or found therein"].)

For a claimant who cannot afford the cost of repairing the automobile, the delay itself may substantially burden the claimant and the claimant's family.

But delay is not the only problem, particularly where the transfer is to Supreme Court, and where "a litigant appearing pro se acquires no greater rights than any other litigant" (see Roundtree v Singh, 143 AD2d at 995.) It seems highly unlikely that counsel provided by an insurance carrier to defend an action for personal injuries will represent the insured in pursuit of property damages, or that other counsel will be found to assist in pursuing a $2,800 claim. [*3]"Directing that a different standard and rules apply to the small claims matter than that applicable to the [Supreme] Court action would be impractical." (See Victoria Kitchens, Inc. v Leiner, 138 Misc 2d 560.)

Transfer and consolidation here, therefore, would prejudice a substantial right of defendant Keon K. Brown, that is, the right to have his claim resolved according to the standard and rules applicable in the Small Claims Part of Civil Court, whereas allowing the Small Claims action to proceed would not prejudice Plaintiff in this action. Plaintiff, presumably with counsel provided by his carrier, will be able to defend the Small Claims action as if this action were never commenced. By commencing this action, however, he should not be permitted to hinder defendant Keon K. Brown's prosecution of his claim.

Plaintiff's motion is, therefore, denied.

February 18, 2010___________________

Jack M. Battaglia

Justice, Supreme Court