Alacqua v. Baudanza

• Decision Date: 14 September 1981
• Citation: 443 N.Y.S.2d 792,110 Misc.2d 774
• Parties: Carl R. ALACQUA and Angela Alacqua, Plaintiffs v. Joseph J. BAUDANZA, Alex S. Hornstein and Frank LaGrua, Defendants.
• Court: New York City Court

Page 792

443 N.Y.S.2d 792

110 Misc.2d 774

Carl R. ALACQUA and Angela Alacqua, Plaintiffs v. Joseph J. BAUDANZA, Alex S. Hornstein and Frank LaGrua, Defendants.

Civil Court of the City of New York,

Kings County, Special Term,

Part I.

Sept. 14, 1981.

Levy & Levy, P. C., New York City, for plaintiffs Alacqua.

Stanley E. Gould, New York City, for defendant LaGrua.

John P. Connors, New York City, for defendant Hornstein.

Pizzitola & Di Blasi, Brooklyn, for defendant Baudanza.

DECISION

JOHN R. CANNIZZARO, Judge.

This is a motion brought by the defendant, Frank LaGrua to (1) strike the above-entitled action from the calendar of this court, (2) directing and amending the complaint in this action to be reduced to the sum of $10000.00 by reason of the decision of this court, dated April 23, 1981, or in the alternative, (3) estopping the plaintiff from claiming an ad damnum clause in excess of $10000.00 for failure to prosecute an appeal from the decision of this court, which adjudicated that this court cannot exceed its constitutional boundaries beyond the sum of $10000.00.

The case at bar is an automobile negligence action noticed for trial in the Supreme Court, Kings County and having been denied a general preference as provided for in the Rules of the Appellate Division, Second Department, was transferred to the Civil Court of the City of New York, pursuant to Section 325(d) of the Civil Practice Laws and Rules on the 17th day of May, 1978 by orders of Hon. Charles R. Rubin, Justice of the Supreme Court.

This motion seeks relief in two phases. Phase one is to strike this action from the calendar AND reduce the ad damnum clause to $10000.00; and Phase two in the alternative to estop the plaintiff from claiming an ad damnum clause in excess of $10000.00 FOR FAILURE TO PROSECUTE AN APPEAL from the decision of this court.

The crux of this motion is based entirely on a decision of this court dated April 23, 1981, rendered by Judge Norman H. Shilling.

A perusal of that decision states:

"Defendants' motion for an order staying all proceedings is granted for 30 days from the date hereof (CPLR 326a) pending defendants' motion to the Supreme Court of the State of New York pursuant to CPLR Sec. 325(b) for an order remanding this case to that Court.

Plaintiffs' cross motion is denied in its entirety."

That decision was followed by the Court's reasoning.

The thirty day period has expired and no motion has been made in the Supreme Court to remand this case. In addition, the decision of Judge Shilling has never been appealed to the Appellate Term of the Supreme Court and the time to appeal has expired.

Instead, defendant, LaGrua, now moves this Court for an order striking this action from the Court's calendar, and amending the ad damnum clause of the complaint to $10,000.00 or alternatively estopping the plaintiffs from claiming in excess of $10,000.00, based on the decision of Judge Shilling. For reasons unrelated to this proceeding, Judge Shilling is not a currently sitting judge, and, consequently, this motion cannot be referred to him for disposition. As a result this case is now in limbo; left with a decision that this court lacks jurisdiction necessary to adjudicate cases under Sec. 325(d) CPLR where the relief sought is in excess of $10,000.00.

After reviewing the entire court file and all documents submitted on this motion this Court finds that there is not even a scintilla of information indicating compliance with Section 1012(b) of the CPLR or Section 71 of the Executive Law, both of which deal with the issue of the constitutionality of a statute.

Section 1012(b) CPLR states:

"When the constitutionality of a statute of the state is involved in an action to which the state is not a party, the court shall notify the attorney-general, who shall be permitted to intervene in support of its constitutionality."

Section 71 of the Executive Law states:

"Whenever the constitutionality of a statute is brought into question upon the trial or hearing of any action or proceeding, civil or criminal, in any court of record of original or appellate jurisdiction, the court or justice before whom such action or proceeding is pending, may make an order, directing the party desiring to raise such question, to serve notice thereof on the attorney-general and that the attorney-general be permitted to appear at any such trial or hearing in support of the constitutionality of such statute. The court or justice before whom any such action or proceeding is pending may also make such order upon the application of any party thereto, and the court shall make such order in any such action or proceeding upon motion of the attorney-general. When such order has been made in any manner herein mentioned it shall be the duty of the attorney-general to appear in such action or proceeding in support of the constitutionality of such statute."

While Section 71 of the Executive Law appears discretionary Section 1012(b) CPLR is mandatory. It mandates that the court shall notify the Attorney-General. (Himmel v. Chase Manhattan Bank, 47 Misc.2d 93, 262 N.Y.S.2d 515).

The court in the case of Seasons Realty Corp. v. City of Yonkers, cited in 80 Misc.2d 601, 608, 363 N.Y.S.2d 738, stated: "... Inasmuch as the Attorney-General for the State of New York was not made a party to this action, this court--even if it deemed it necessary to do so--could not have passed upon the constitutionality of the State's statute without giving the Attorney-General an opportunity to intervene in support of the constitutionality of the statute. (CPLR 1012 subd. (b); (Executive Law, Section 71)". In that case, while the constitutionality issue was not involved, it touched upon that subject in its dictum.

In the case of Colenzo v. Kernan, cited in 49 A.D.2d 809, 810, 373 N.Y.S.2d 426, the court refused to consider the unconstitutionality issue "... because he did not make the Attorney-General a party to the motion and present that argument at Special Term so that the issue could have been fully considered there (Matter of Jerry v. Board of Educ. of City School Dist. of City of Syracuse, 44 A.D.2d 198, 202, 203, 354 N.Y.S.2d 745, modified on other grounds 35 N.Y.2d 534, 364 N.Y.S.2d 440, 324 N.E.2d 106; Executive Law § 71, CPLR 1012 subd. (b)." See also in the matter of Strongin v. Nyquist, 54 A.D.2d 1031, 388 N.Y.S.2d 683.

Consequently the failure of compliance with Section 1012(b) CPLR and Section 71 of the Executive Law the constitutionality of Section 325(d) of the CPLR was not fully tested by inasmuch as it deprived Attorney-General an opportunity to intervene in support of the constitutionality of that statute; therefore, the court's decision of April 23, 1981 is a nullity and void.

While it is not the intent of this court to act as an appellate court, it would be remiss to the issue by not expressing its viewpoints relating to 325(d) transfer.

The Civil Court of the City of New York is a constitutionally created court with its origin in Article VI of the Constitution of the State of New York.

Its jurisdiction is set forth in Section 15 subdivision(b) ".......... where the amount sought to be recovered or the value of the property does not exceed ten thousand dollars, exclusive of interest and costs, or such smaller amount as may be fixed by law ......... and over such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law."

Section 19 subdivision (a) gives the Supreme Court the right to transfer any action or proceeding, except over which it shall have exclusive jurisdiction which does not depend upon the monetary amount sought, to any other court having jurisdiction of the subject matter and classes of persons named as parties.

Thus the constitutional power is self-executing (Haas v. School, 68 Misc.2d 197, 325 N.Y.S.2d 844; Kemper v. Transamerica Ins. Co., 61 Misc.2d 7, 304 N.Y.S.2d 515; Weinstein, Korn & Miller Vol. 1 Sec. 325).

This section authorizes the transfer of an action notwithstanding absence of consent or presence of objection by any party thereto. (Frankel Associates, Inc. v. Dun & Bradstreet, Inc., 45 Misc.2d 607, 257 N.Y.S.2d 555).

Section 19 Subd. (j) states "Each court shall exercise jurisdiction over any action or proceeding transferred to it pursuant to this section."

Section 19 Subd. (k) states "The legislature may provide that the verdict or judgment in actions and proceedings so transferred shall not be subject to the limitation of monetary jurisdiction of the court to which the actions and proceedings are transferred if that limitation be lower than that of the court in which the actions and proceedings were originated."

In the absence of any other constitutional or statutory authority, the transferee court could exercise jurisdiction over a transferred action, only to the extent of its monetary limitation. If such were the prevailing construction of the constitution and statutory law, the Supreme Court would have the power to deny the plaintiff the right to a trial by jury for that amount which exceeds the transferee court's monetary jurisdiction. By such action the plaintiff would be denied his right to a trial by jury as conferred by Article I Section 2 and Article VI Section 18 and CPLR 4101.

The language in Article VI Sec. 19(k) is clear in its intent. It gives the legislature the power to provide the answer to the problem that Article VI Sec. 19(a) does not address, to wit: the validity of a judgment rendered in excess of the monetary jurisdictional limit of the transferee court.

Consequently, the necessity of Section 325(d) of the Civil Practice Law and Rules; which reads as follows:

"The appellate division, if it determines that the calendar conditions in a lower court so permit, may by rule provide that a court in which an action is pending may, in its discretion, remove such action without consent to such lower court where it appears that the amount...