Haas v. Scholl

• Decision Date: 26 October 1971
• Parties: Henry HAAS, Plaintiff, v. William F. SCHOLL et al., Defendants.
• Court: New York Supreme Court

Page 844

325 N.Y.S.2d 844

68 Misc.2d 197

Henry HAAS, Plaintiff, v. William F. SCHOLL et al., Defendants.

Supreme Court, Westchester County.

Oct. 26, 1971.

Gilberg & Gilberg, Mount Vernon, for plaintiff.

Zepnick & Director, New York City, for defendant Home Indemnity Co.

DeSantis, McGarry & Hargous, Garden City, for defendants Scholl and North.

JOSEPH F. GAGLIARDI, Justice.

Plaintiff moves for reargument of a decision rendered by another justice of this Court which denied an application for a general preference. Motion disposed of in accordance with the following opinion.

This motion brings into focus several interesting and important questions concerning the efficient distribution of judicial manpower and the orderly transfers of matters not properly before the Supreme Court. Consequently, the Court shall set forth the factual background of the within matter and analyze the various issues raised by the present motion.

Plaintiff, a resident of Bronx County, brings this action for personal injuries allegedly sustained on March 19, 1967 in the Borough of Manhattan. The individual defendants, who are residents of the State of Wisconsin, are the owner and operator of the motor vehicle which allegedly struck plaintiff. The corporate defendant is a domestic corporation having a place of business in the County of Westchester and venue is predicated upon its presence here.

The action was commenced in February 1970 pursuant to an order of this Court authorizing substituted service upon the individual defendants. All defendants have appeared and answered. The complaint alleges two causes of action, one against the individual defendants jointly and one against the corporate defendant, and prays for $80,000 compensatory damages in each instance. Various justices of this Court have passed upon certain facets of this case. On April 22, 1970 this Court issued an order amending the title of the action and regulating the examinations before trial. On July 30, 1970 an application for a general preference was denied. On June 25, 1971 and July 12, 1971 motions regarding applications for discovery and inspection were decided. Accordingly, within an eighteen month period (February 1970--July 1971) five different justices of this Court were called upon to decide various applications concerning some procedural aspects of this case.

In his application for a general preference plaintiff claimed a preference due to severe and protracted injuries. The application was unopposed and, as indicated earlier, was denied. In the motion for reargument, which is really a motion to renew, plaintiff once again claims serious personal injuries and, for the first time, requests a preference on the ground that the County Court lacks jurisdiction over the classes of persons sued, specifically the individual nonresident defendants. The motion is opposed by the latter parties who consent to a transfer to the County Court and agree to waive any jurisdictional objections they otherwise would be entitled to raise in that Court.

As a procedural matter, the initial motion having been decided on default, the within application is not properly referable (CPLR 2221). Plaintiff implicitly recognizes this fact and has not requested referral of the motion. Plaintiff initially asserts that his injuries would result in an award of damages in excess of the $10,000 monetary jurisdiction of the County Court (N.Y. State Constitution, Art. 6, § 11, subd. (a), McKinney's Cons.Laws of N.Y., Book 2; Judiciary Law § 190, subd. 5). However, on this motion plaintiff merely realleges his claim of injuries as set forth in Haec verba in the bill of particulars which are the same claims made on the original motion. The medical reports submitted with the original application are insufficient to support plaintiff's contention that an award will exceed the $10,000 County Court monetary limitation. Consequently, that part of the motion for a general preference predicated upon the claim of serious injuries is denied.

As a practical matter the denial of a general preference means that the case will never be tried in the Supreme Court (see 4 Weinstein-Korn-Miller, N.Y.Civ. Practice 3404.4). In the ordinary course of events the parties would then stipulate to a reduction in damages and the transfer to the County Court (CPLR 325, subd. c). However, plaintiff, either by way of caution (since subject-matter jurisdiction may not be vested in a court by consent (Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324, 19 N.E. 625, 627)), or in the earnest but erroneous belief that the matter properly belongs in the Supreme Court has alternatively requested a preference on jurisdictional grounds.

The latter issue raises two important problems regarding the orderly transfer of cases from the Supreme Court to the County Court. First, is the consent of the individual defendants herein sufficient to waive jurisdictional objections? Secondly, is the consent of the plaintiff required (equating his position on this motion with non-consent) so as to permit a transfer? The Court shall answer these inquiries seriatim.

Jurisdiction of the County Court is delineated in sections 190 and 190--a of the Judiciary Law. Insofar as is pertinent here the County Court in negligence actions has jurisdiction of individual defendants where all such defendants reside in the County (Judiciary Law § 190, subd. 3). The corporate defendant herein allegedly has a place of business in Westchester County and is therefore deemed a resident of said County for jurisdictional purposes (Judiciary Law § 190--a). Consequently, it is clear that the County Court of Westchester has subject-matter jurisdiction over all classes of defendants sued herein (Murphy v. Itcha Realty Corp., N.Y.L.J. 5/21/71 p. 19, col. 6 (S.Ct. West Cty.)). In the cited case this Court discussed at length the constitutional and statutory predicates of subject-matter jurisdiction of the County Court and held that a domestic corporation, not a resident of Westchester County, could properly consent to a transfer to the County Court of Weschester since it merely waived its power to assert In personam jurisdictional objections (also see Martin v. Farrell, 47 Misc.2d 126, 261 N.Y.S.2d 820; CPLR 3211, subd. (e)). The Court adheres to the conclusion reached in Murphy, which does not require further elaboration here, and holds that the issue of subject-matter jurisdiction does not arise at bar. Accordingly, the individual defendants may properly consent to a transfer of the within matter and thereby waive their rights to assert personal jurisdictional objections.

The second problem, regarding consent of the plaintiff, raises ancilliary issues not capable of easy resolution.

Prior to the revision of this State's Constitution in 1962 and before the advent of the CPLR in 1963, written consent of the plaintiff was required to authorize transfers from the Supreme Court to inferior courts (CPA § 110--b; Martirano v. Valger, 19 A.D.2d 544, 240 N.Y.S.2d 792 (2d Dept.)). However, in 1962 the Constitution was changed and in pertinent part provided (Art. 6, § 19, subd. a):

'The supreme court may transfer any action or proceeding, except one 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 within the judicial department provided that such other court has jurisdiction over the classes of persons named as parties.'

Subdivision (a) of the cited provision (as well as several other subdivisions in Section 19) goes on to provide that '(a)s may be provided by law' certain transfers may or may not occur depending upon various factors such as the promotion of justice. Consequently, section 325 of the CPLR was enacted and is designed to implement the constitutional authority. The statute is more restrictively worded than the quoted provision of the 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. Section 325 was drafted prior to the revision of the State Constitution in 1962 'and in some respects is inconsistent with' Article 6, § 19 thereof (McLaughlin, Practice Commentary to CPLR 325, McKinney's Cons.Laws of N.Y., Book 7B at 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, i.e. the power to transfer cases down is self-executing (American Mut. Liab. Ins. Co. v. Bova, 32 A.D.2d 527, 300 N.Y.S.2d 86 (1st Dept.); Turntables Inc. v. M. B. Plastics Corp., 31 A.D.2d 792, 297 N.Y.S.2d 51 (1st Dept.); Trussell v. Salti, 29 A.D.2d 851, 288 N.Y.S.2d 125 (1st Dept.); Garland v. Raunheim, 29 A.D.2d 383, 288 N.Y.S.2d 417 (1st Dept.); Midtown Commercial Corp. v. Kelner, 29 A.D.2d 349, 288 N.Y.S.2d 122 (1st Dept.); Kemper v. Transamerica Ins. Co., 61 Misc.2d 7, 304 N.Y.S.2d 515; Morse v. Penzimer, 58 Misc.2d 156, 295 N.Y.S.2d 125; Matter of Meister, 55 Misc.2d 1050, 287 N.Y.S.2d 511; Hesse v. Hrubsa, 55 Misc.2d 610, 286 N.Y.S.2d 183, rev'd other gr. and app. dism. 57 Misc.2d 913, 293 N.Y.S.2d 828 (App. Term 2d Dept.); Frankel Assoc. v. Dun & Bradstreet, 45 Misc.2d 607, 257 N.Y.S.2d 555; Stevens v. M.V.A.I. Corp., 41 Misc.2d 1013, 246 N.Y.S.2d 948; see Wagner v. Wagner, 25 A.D.2d 796, 269 N.Y.S.2d 177 (3rd Dept.)). Thus, it has been held that contrary to former CPLR 325, subdivision (d) (now subd. (e)), neither a motion nor prior consent of the Surrogate is required to transfer a matter to the Surrogate's Court (Garland v. Raunheim, Supra; Matter of Meister, Supra); that an inferior court may transfer a matter to the Supreme Court although no motion was made in the latter forum as required by CPLR 325, subdivision (b) (Kemper v....