Unterberg v. Scarsdale Imp. Corp.
| Citation | 128 Misc.2d 873,491 N.Y.S.2d 571 |
| Parties | Miriam UNTERBERG, Plaintiff, v. SCARSDALE IMPROVEMENT CORPORATION, Defendant. |
| Decision Date | 28 June 1985 |
| Court | United States State Supreme Court (New York) |
Application has been made by plaintiff for a further order of this Court transferring this action to the County Court of Westchester County, pursuant to CPLR 325 (subd. [c] ). This application is prompted by an order of the City Court of White Plains (REAP, J.) which purports to "transfer back" to this Court the instant action that had been previously transferred to the City Court by order of this Court, by the undersigned, dated June 5, 1985. The basis for the "retransfer" was a finding by the lower court of limited jurisdiction that this Court "clearly erred" in transferring this case to the City Court of White Plains.
The order of the City Court has not only created procedural confusion and left the parties in a void between two courts, but has violated well settled principles of jurisprudence.
The City Court of White Plains is not a court of error. The New York State Constitution establishes only the Court of Appeals, the Appellate Division of Supreme Court, the Appellate Term of Supreme Court, and the County Court as courts with appellate jurisdiction. (N.Y.Cons., article VI, §§ 2-6, 8, 11; see Carmody-Wait 2d, chap. 2, appx., pp. 248-249). The City Court of White Plains is an inferior court of limited jurisdiction A fortiori, a lower court of inferior jurisdiction, as here, should not reconsider, disturb or overrule the order of a court with greater jurisdiction,viz., the Supreme Court with general original jurisdiction in law and equity (N.Y.Cons., art. 6, § 7).
Beyond these jurisprudential considerations, this Court must observe that its prior order transferring this action to the City Court of White Plains was "clearly" not in error. First, the transfer was not pursuant to CPLR 325 (subd. [d] ), there being no Appellate Division rule implementing that section in the Ninth Judicial District. Transfer was ordered pursuant to article VI, section 19, subdivision (a) of the New York Constitution. In accordance with the inherent power invested in the Supreme Court by that constitutional provision, the transfer to City Court also automatically effected a reduction 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., art. VI § 19, subds. [a], [k]; cf. Alacqua v. Baudanza, 110 Misc.2d 774, 443 N.Y.S.2d 792.)
Secondly, as to the requirements of UCCA § 213, this Court recognized that the parties were not resident in the City of White Plains. Nevertheless, when it was indicated that a transfer to the City Court with greater monetary jurisdiction than the appropriate justice court might be recommended, no objection was made by the parties. Since the requirements of UCCA § 213 are not jurisdictional and may be waived (UCCA § 213, subd. [d] ) and since the Court determined that transfer to the City Court would be most appropriate under the facts and circumstances of this case, there was nothing in UCCA § 213 to prevent such a transfer.
Finally, the Court must observe that when the City Court decided to overrule this Court's order of transfer it not only exceeded its authority in making such a decision, but it also exceeded its authority in ordering the "retransfer" of the action. There is absolutely no power in the City Court to transfer or "retransfer" an action to the Supreme Court (see ...
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Spinnell v. Doris L. Sassower, P.C.
...to itself appellate powers if it were not to accept the CPLR 325(d) transfer and try the action. Unterberg v. Scarsdale Improvement Corp., 128 Misc.2d 873, 491 N.Y.S.2d 571, on which plaintiff relies, is distinguishable from the case at bar. The Unterberg court found that neither party had ......
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Jeng v. Barrow-Jeng
...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 58 Misc.3d 914 Haas v. Scholl , 68 Misc. 2d ......
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Jeng v. Barrow-Jeng, 10/13476
...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 (Sup. Ct. Westchester Cty 1985). An even more compelling logic appears in Haas v. Scholl, 68 Misc 2d 197 (Sup. Ct. Westchester Cty 1971), in......
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In the Matter of Collection Assoc., JV. v. Rosenberg, 2005 NY Slip Op 51657(U) (NY 10/13/2005)
...foregoing, this Court is without power to review the propriety of the Supreme Court decision (see Unterberg v. Scarsdale Improvement Corporation, 128 Misc 2d 873 [Sup. Ct. West. Co. 1985]) or examine the factual or legal basis used by the Supreme Court to order the transfer (see Vano v. Eng......
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Table of Cases
..., 642 F2d 733 (5th Cir 1981) rehearing denied 652 F2d 999, vacated 103 SCt 1889, §25:154 Unterberg v. Scarsdale Improvement Corporation , 128 Misc2d 873 (Sup Ct Westchester Co 1985), §6:342 Unterman v. Kaufman , 57 AD2d 745, 394 NYS2d 15 (1st Dept 1977), §§42:191, 42:463 Uptown Healthcare M......
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Table of Cases
..., 642 F2d 733 (5th Cir 1981) rehearing denied 652 F2d 999, vacated 103 SCt 1889, §25:154 Unterberg v. Scarsdale Improvement Corporation , 128 Misc2d 873 (Sup Ct Westchester Co 1985), §6:342 Unterman v. Kaufman , 57 AD2d 745, 394 NYS2d 15 (1st Dept 1977), §§42:191, 42:463 Urbach v. City of N......
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Subject Matter Jurisdiction
...L. Sassower, P.C. , 155 Misc2d 147, 589 NYS2d 230 (NYC Civ Ct 1992).] • However, in Unterberg v. Scarsdale Improvement Corporation , 128 Misc 2d 873 (Sup Ct Westchester Co. 1985), the court held that the fact of the transfer was “law of the case” that the transfer was proper, precluding low......
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Subject Matter Jurisdiction
...L. Sassower, P.C. , 155 Misc2d 147, 589 NYS2d 230 (NYC Civ Ct 1992).] However, in Unterberg v. Scarsdale Improvement Corporation , 128 Misc 2d 873 (Sup Ct Westchester Co. 1985), the court held that the fact of the transfer was “law of the case” that the transfer was proper, precluding low......