Pa Sulayman Mm Jeng v Barrow-Jeng

[*1] Pa Sulayman Mm Jeng v Barrow-Jeng 2018 NY Slip Op 28005 Decided on January 8, 2018 Supreme Court, Monroe County Dollinger, J. 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 printed Official Reports.

Decided on January 8, 2018
Supreme Court, Monroe County

Pa Sulayman Mm Jeng, Plaintiff,

against

Fatoumatta Barrow-Jeng, Defendant.



10/13476



Alexander Korotkin, Esq.

Attorney for Plaintiff

Rochester, New York

George Forsyth, Esq.

Attorney for Defendant

Rochester, New York

Lisa Maslow, Esq.

Attorney for the Child(ren)

Rochester, New York
Richard A. Dollinger, J.

Sometimes a stroll through the state constitution, while interpreting an otherwise simple statute, can result in a complex answer to what seems, at first blush, to be a simple question.

In this matter, a former wife seeks to remove her husband's petition for modification of visitation and child support from Family Court to Supreme Court, the latter being the court which handled the divorce matter and a series of post-judgment petitions. The husband opposes the wife's motion, arguing that the removal provisions of the CPLR require some "justification" for removal, such as either a "mistake in the choice of court" or "the limited jurisdiction" of the court of origin. CPLR 325 (a) & (b). Finding no statutory justification for the removal, the former husband claims the wife is "forum-shopping" in seeking to bring this dispute back to supreme court.

The husband is correct if this court simply reads the CPLR: there is no statutory basis for this court to remove the matter from family court. But, the statute seems to collides with a provision in the New York State Constitution, which, prior precedents aver, creates a broad self-executing power for Supreme Court to remove a matter from any court without the need for any legislative [*2]authority. The Constitution provides: As may be provided by law, the supreme court may transfer to itself any action or proceeding originated or pending in another court within the judicial department other than the court of claims upon a finding that such a transfer will promote the administration of justice.

Constitution, Art. VI, §19(a).

Per usual, there is a catch. The prefatory phrase "as may be permitted by law" in Section 19(a) has been interpreted by some courts to require that the statutory grounds set forth in CPLR 325 must be established before supreme court can remove any action. At least one Appellate Division supported this conclusion, albeit 40 years ago. Dalliessi v. Marbach, 56 AD2d 858 (2nd Dept 1977). The Second Department held that the introductory language of the constitution required "legislative authority for the transfer" in a civil context But, a broader reading of the Constitution and at least an incidental reference to the powers of the Supreme Court to remove cases recently by the Court of Appeals strongly suggests that CPLR 325 does not inhibit the transfer in this instance. In People v. Correa, 15 NY2d 213 (2010), the Court of Appeals read Section 19 (a) of the Constitution as giving Supreme Court a wide berth in deciding removal or transfer questions:

Given the historical context in which these [constitutional] provisions were adopted, it is not surprising that the drafters of the Judiciary Article expressly permitted the transfer of cases to and from Supreme Court.

Id at 224. While the court did not directly assess the impact of CPLR 325 on this broad constitutional power in People v. Correa, the court was clear that it interpreted Section 19(a) to give extensive transfer and removal powers to supreme courts. Another lower court, reviewing the Court of Appeals decision in People v. Correa and the authority of Dalliessi v. Marbach concluded that the power in this section was not self-executing and in the absence of a statuary authorization, a transfer or removal was not permitted. People v. Kennedy, 43 Misc 3d 1201 (a) (J.Ct. North Castle, Westchester Cty 2014).[FN1]

In contrast, other courts advance a more persuasive argument that the restrictions in CPLR 325 do not confine the Supreme Court's power to transfer cases from family court to supreme court. In Offner v. Rotchschild, 87 Misc 2d 565 (Sup. Ct. Kings Cty 1976), the court held that Supreme Courts had the inherent power to transfer cases and to the extent that the CPLR was interpreted to limit that power, it was a superseded by the powers granted to the Supreme Court by the Constitution, citing Article VI, §19(a). See also Unterberg v. Scarsdale Improv. Corp., 128 Misc 2d 873 (Sup. Ct. Westchester Cty 1985). An even more compelling logic appears in Haas v. Scholl, 68 Misc 2d 197 (Sup. Ct. Westchester Cty 1971), in which the trial court intoned:

[Section 19(a)] goes on to provide that "as may be provided by law" certain transfers may or may not occur depending upon various factors such as the promotion of justice. Consequently, CPLR 325 was enacted and is designed to implement the constitutional authority. The statute is more restrictively worded than the quoted provision of the [*3]Constitution and, for example, it requires consent of all parties for transfers down, prior motions in the Supreme Court for transfers up, prior consent of the Surrogate in decedent estate matters, etc. CPLR 325 was drafted prior to the revision of the State Constitution in 1962 "and in some respects is inconsistent with" section 19 of article VI thereof (McLaughlin, Practice Commentary [*201] to CPLR 325, McKinney's Cons. Laws of NY, Book 7B, p. 623; 44 St. John's L. Rev. 770 at N. 63 [1970]). The cases, therefore, have been uniform in holding the statute to be incompatible with the broad authority conferred by the Constitution and is superseded to the extent inconsistent therewith.

Id. at 201. The court added: Secondary authority agree that the relevant provisions of CPLR 325 have been superseded by the 1962 constitutional revision (1 Weinstein-Korn-Miller, NY Civ. Prac., pars. 325.04, 325.16, 325.17, 325.19a; McLaughlin, Supplementary Practice Commentary to CPLR 325, McKinney's Cons. Laws of NY, Book 7B, CPLR [in 1970 Supp., pp. 266-269]). In sum, the Supreme Court possesses the inherent power to transfer a case not within its exclusive jurisdiction to any court within its judicial department having jurisdiction of the subject matter and the classes of persons sued.

Id. This court agrees with this aging authority, which has the backing of at least one recent commentator: CPLR 325, although intended to implement the Constitution, is in some respects inconsistently narrower because it was drafted prior to the constitutional revision. Consequently, the courts have been uniform in holding "the statute to be incompatible with the broad authority conferred by the Constitution and superseded to the extent inconsistent therewith." The courts have also concluded that the constitutional provisions that supercede narrower legislation must be regarded as self executing unless they refer to legislative action or contain the phrase "as may be provided by law. Thus, despite the requirements for motions in CPLR 325 (a), (b), and (e), the courts have found that they have inherent power to remove, sua sponte, pursuant to their constitutional powers.

2-325 New York Civil Practice: CPLR P 325.04. The recent commentary, combined with the more recent discussion from the Court of Appeals on the breadth of Section 19(a) of Article VI of the state Constitution in People v. Correa, gives this court a greater assurance that the somewhat ancient case law discussing this issue, even while falling on both sides of the question, tilts in favor of concluding this court has the broad self-effectuating authority to remove a case from family court.

In this instance, prudent and efficient utilization of judicial resources favor such a conclusion. This court is familiar with divorce decree underlying this matter and has handled other pos-judgment applications, and issued a series of orders, none of which have been appealed or modified. The issues presented — modification fo visitation and child support — are well within the court's jurisdiction and experience. The matter should be removed to this court.

The wife's application to remove is granted.

Submit order on notice. 22NYCRR 202.48.

Dated: January 8, 2018

Richard A. Dollinger, A.J.S.C. Footnotes

Footnote 1: Importantly, both of these cases involve criminal matters. But, the Court of Appeals acknowledgment that Supreme Court has broad transfer/removal powers, even in that context, casts some light on the civil transfer issue before this Court.