Hyman & Gilbert, P.C. v. Greenstein
| Decision Date | 28 March 1988 |
| Citation | 138 A.D.2d 678,526 N.Y.S.2d 492 |
| Parties | HYMAN & GILBERT, P.C., Respondent, v. Arnold GREENSTEIN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Arnold Greenstein, pro se.
Hyman & Gilbert, P.C., New Rochelle (Rita K. Gilbert, of counsel), pro se.
Before THOMPSON, J.P., and WEINSTEIN, RUBIN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In an action to recover $1,350 as compensati for legal services, the defendant appeals from an order of the Supreme Court Westchester County (Donovan, J.), entered February 2, 1987, which denied that branch of his motion which was to strike the note of issue and granted that branch of his motion which was for an order directing the plaintiff to respond to a combined "Demand for Bill of Particulars/Interrogatories" only with respect to Items Nos. 1, 9, 10, 11 and 12, and an order of the same court, also entered February 2, 1987, which sua sponte transferred the action to the City Court of the City of New Rochelle.
ORDERED that the appellant is awarded one bill of costs.
In August 1986 the plaintiff, a professional corporation having its place of business in New Rochelle (see, UCCA 213[b]), commenced this action in the Supreme Court, Westchester County, to recover $1,350 as compensation for legal services allegedly performed for the defendant, a resident of New Jersey. The defendant was personally served with process in New Jersey pursuant to CPLR 313. He purportedly served his verified answer by mail on September 2, 1986. However, the plaintiff apparently did not receive the answer prior to serving and filing a note of issue on September 16, 1986, as evidenced by the fact the plaintiff left blank the space on the note of issue for recording the date issue was joined. By notice of motion dated November 28, 1986, the defendant moved pro se to strike the case from the calendar on the ground he had not had an opportunity to conduct discovery prior to service of the note of issue, and requested an order directing the plaintiff to respond to a combined demand for a "Bill of Particulars/Interrogatories". While this motion was pending, a pretrial conference was held, at which time the Supreme Court indicated an intention to transfer the action to the City Court of the City of New Rochelle. The defendant opposed the transfer on the ground the City Court of the City of New Rochelle lacked personal jurisdiction over him. In the orders appealed from, the Supreme Court (1) denied the defendant's motion to strike the note of issue, but directed the plaintiff to respond to Items Nos. 1, 9, 10, 11 and 12 of the combined demand for a bill of particulars and interrogatories, and (2) sua sponte transferred the action to the City Court of the City of New Rochelle, pursuant to N.Y. Constitution article VI, § 19.
New York Constitution, article VI, § 19 authorizes the Supreme Court to transfer an action not within its exclusive jurisdiction, without the consent of the parties ( see, Hesse v. Hrubsa, 55 Misc.2d 610, 611, 286 N.Y.S.2d 183, appeal dismissed 57 Misc.2d 913, 293 N.Y.S.2d 828; Haas v. Scholl, 68 Misc.2d 197, 325 N.Y.S.2d 844; Alacqua v. Baudanza, 110 Misc.2d 774, 778, 443 N.Y.S.2d 792), directly to a court of limited jurisdiction. However, such a transfer is conditioned on the provision that the lower court "has jurisdiction over the classes of the persons named as parties". "Classes of persons" as used in this constitutional provision encompasses those persons over whom the lower court might have obtained jurisdiction had the action been initially commenced there (see, Hesse v. Hrubsa, supra; Rochester Tel. Corp. v. Kirchner, 97 Misc.2d 725, 412 N.Y.S.2d 272; Mosera v. Henry C. Knoblauch & Sons, Inc., 145 N.Y.S.2d 344; Friedman v. Strand, 203 Misc. 170, 115 N.Y.S.2d 266; 1 Weinstein-Korn-Miller NY Civ Prac p 325.18). The long-arm jurisdiction of the city courts (see, UCCA 404[a]) is not as broad as that of the Supreme Court (see, CPLR 302), because service of process is restricted to the home county or an adjoining county (see, N.Y. Const. article VI, § 1[c]; UCCA 404[b]). Although the City Court of the City of New Rochelle would have had jurisdiction over the subject matter of the instant action, service of process on the defendant in New Jersey could not have secured personal jurisdiction by the City Court of the City of New Rochelle over the defendant. Consequently, the Supreme Court erred in transferring the action to the City Court of the City of New Rochelle, in the absence of the defendant's consent to personal jurisdiction (see, Rochester Tel. Corp. v. Kirchner, supra; Mosera v. Henry C. Knoblauch...
To continue reading
Request your trial
-
Spinnell v. Doris L. Sassower, P.C.
...upon transfer simply because the Supreme Court had jurisdiction when the action was commenced there. See Hyman & Gilbert, P.C. v. Greenstein, 138 A.D.2d 678, 526 N.Y.S.2d 492. To argue that the Supreme Court transfer order transfers the Supreme Court's jurisdiction, in addition to the actio......
-
Young v. Destaso Funding, LLC
...A.D.3d 563, 891 N.Y.S.2d 288; Gregory v. Ford Motor Credit Co., 298 A.D.2d 496, 748 N.Y.S.2d 507; Hyman & Gilbert v. Greenstein, 138 A.D.2d 678, 526 N.Y.S.2d 492; 48–48 Assoc. v. Solow, 97 A.D.2d 742, 469 N.Y.S.2d 11; Empire Mut. Ins. Co. v. Moore Bus. Forms, 88 A.D.2d 819, 451 N.Y.S.2d 98)......
-
Valentine v. Armor Elevator Co., Inc.
...the amplification of the pleadings, the limitation of proof and the prevention of surprise at trial (see, Hyman & Gilbert v. Greenstein, 138 A.D.2d 678, 526 N.Y.S.2d 492; Paldino v. E.J. Korvettes, Inc., 65 A.D.2d 617, 409 N.Y.S.2d 541). The record in the instant case reveals that, despite ......
-
Bentley v. Solomon Equities, Inc.
...weight to Masons' failure to move within the ordinarily applicable 20-day period and its delay thereafter (Hyman & Gilbert, P.C. v. Greenstein, 138 A.D.2d 678, 526 N.Y.S.2d 492; Conford Co. v. Fordham Concourse Realty Assocs., 119 A.D.2d 526, 501 N.Y.S.2d ...