Jeng v. Barrow-Jeng

• Decision Date: 08 January 2018
• Docket Number: 10,13476
• Citation: 58 Misc.3d 911,68 N.Y.S.3d 859
• Parties: Pa Sulayman Mm JENG, Plaintiff, v. Fatoumatta BARROW–JENG, Defendant.
• Court: New York Supreme Court

58 Misc.3d 911

68 N.Y.S.3d 859

Pa Sulayman Mm JENG, Plaintiff,

v.Fatoumatta BARROW–JENG, Defendant.

10

13476

Supreme Court, Monroe County, New York.

Decided on January 8, 2018

Alexander Korotkin, Esq., Rochester, New York, Attorney for Plaintiff.

George Forsyth, Esq., Rochester, New York, Attorney for Defendant.

Lisa Maslow, Esq., Rochester, New York, Attorney for the Child(ren).

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 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 A.D.2d 858, 392 N.Y.S.2d 316 (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 N.Y.3d 213, 907 N.Y.S.2d 106, 933 N.E.2d 705 (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, 907 N.Y.S.2d 106, 933 N.E.2d 705. 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), 2014 WL 1128261 (J.Ct. North Castle, Westchester Cty. 2014).¹

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. Rothschild , 87 Misc. 2d 565, 386 N.Y.S.2d 188 (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, 491 N.Y.S.2d 571 (Sup. Ct. Westchester Cty. 1985). An even more compelling logic appears in Haas v. Scholl , 68 Misc. 2d 197, 325 N.Y.S.2d 844 (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 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, 325 N.Y.S.2d 844. 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,

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