Offner v. Rothschild
| Decision Date | 21 July 1976 |
| Citation | 87 Misc.2d 565,386 N.Y.S.2d 188 |
| Parties | Esther OFFNER v. Margot ROTHSCHILD, et al. |
| Court | New York Supreme Court |
Malcolm Fein, P.C., for plaintiff.
W. Bernard Richland, Corp. Counsel, New York City, for defendant City of N.Y.
Julius Gantman, New York City, for defendants Rothschild and Lowenstein.
This is an application for a general preference in accordance with Part 674 of the Rules of the Appellate Division, Second Department, (22 N.Y.C.R.R. 674.1 et seq.) relating to actions to recover damages for personal injuries resulting in permanent or protracted disability.
From many months of presiding in the trial term calendar part of this court, it appears to me that this case is just one of many which should not have been brought in this court in the first instance, and which should properly be in the Civil Court of the City of New York. However, it has come to the court's attention that the current practice of transferring cases from this court to the Civil Court results in a pattern of preference to those cases brought in an improper forum over those cases properly brought, without any penalty to the plaintiffs in the former. In the interests of the proper administration of the calendars of this court this practice must cease. Judicial efficiency is a goal which should be striven for and attained by both the courts and practicing bar.
Although the instant case is just an example of this type of abuse, a brief summary of the circumstances here involved will assist the bar in more fully understanding the problem which confronts the court.
This action arises from a fall on a sidewalk on August 12, 1974 in Brooklyn, New York.
The medical reports submitted by plaintiff indicate that she fell forward on her hands and struck her forehead. Dr. Lloyd G. Bayme, the treating physician, diagnosed the injuries as follows: cerebral concussion; contusion of the right forehead with periorbital hematoma; contusion and abrasion of right hand; contusion and abrasion of left hand; severe sprain of right wrist.
Dr. Sydney F. Freilich, who examined plaintiff two days after the accident, found that her eyesight was 20/40 in each eye with correction, that there was 'much ecchymosis around the lids of right eye, some edema', that the cornea in anterior chamber was clear, and that the fundi was dilated and normal.
Neither doctor found any disability or permanent injury as a result of the accident. The medical expenses claimed are $35 for Dr. Bayme's consultation, $90 for six office visits, $40 for x-rays, $20 for Dr. Freilich's examination, plus $65 for new eyeglasses, for a total of $250. Plaintiff was a housewife and no loss of earnings is claimed.
The examining physician for one of the defendants reported that on November 14, 1974, there were no scars and that plaintiff 'has made an excellent recovery from the alleged injuries'.
It is obvious that any damages that may have been suffered by plaintiff can be compensated for well within the monetary limits of the Civil Court, to wit, $10,000. The complaint herein demands damages of $100,000.
In light of these circumstances the court requested that plaintiff consent, pursuant to CPLR 325(c), to a removal to Civil Court with a reduction in amount of damages sought to the monetary limit of that court. This request was refused.
The practice of this court has been in such instances to order a removal to Civil Court pursuant to subdivision (d) of CPLR 325, which has been made applicable to this court by the promulgation by the Appellate Division of Rule 752.20. However, subdivision (d) provides that an action removed pursuant to that portion of the law retains limitation as to monetary jurisdiction of the court in which the action was originally commenced.
This court is aware of the fact that since the advent of no fault automobile insurance, with its threshold requirement for the institution of lawsuits (Insurance Law § 670 et seq.), as well as efficient disposition of cases, the calendars in the Civil Court, Kings County are not backlogged and that a trial may be had within a short period of time after filing of a note of issue. On the other hand, this court has become burdened with numerous newly popular types of actions such as products liability and medical malpractice, often involving large amounts of damage, as well as the normal equity and criminal jurisdictions reserved to this court, to such an extent that litigants often wait years before their cases are reached for trial.
Thus, by transferring a case to the Civil Court with an ad damnum clause above the monetary limitation of that court, a preference is created whereby a plaintiff who should have brought suit in Civil Court in the first instance, receives a trial far in advance of plaintiffs who properly commenced their actions in Supreme Court, with no difference in limitation of the monetary amount sought.
It is the opinion of this court that it is within the power of the Supreme Court under its constitutional jurisdiction to remedy this situation.
Article 6, section 19(a) of the New York State Constitution provides:
'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.'
Section 19 also contains various other provisions in subdivisions (a) through (i) for the transfer of cases between the several courts of this state. However, most of these provisions are limited by the phrase 'as may be provided by law.'
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Jeng v. Barrow-Jeng
...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 th......
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Unterberg v. Scarsdale Imp. Corp.
...in the ad damnum clause to place the case within the monetary jurisdictional limits of the lower court. (See Offner v. Rothschild, 87 Misc.2d 565, 386 N.Y.S.2d 188; Weber v. Kowalski, 85 Misc.2d 349, 376 N.Y.S.2d 996; Haas v. Scholl, 68 Misc.2d 197, 325 N.Y.S.2d 844; see, also, N.Y.Cons., a......
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Alacqua v. Baudanza
...in Kings County (22 NYCRR 752.20); in Richmond County (22 NYCRR 75.57) and in Queens County (22 NYCRR 795.14). In Offner v. Rothschild, 87 Misc.2d 565, 386 N.Y.S.2d 188 (1976) Art. VI Sec. 19(a) and 19(k) were read separately, and as a result Sec. 19(a) alone was construed to provide consti......
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Jeng v. Barrow-Jeng, 10/13476
...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 ......