Weber v. Kowalski

Decision Date11 December 1975
Citation376 N.Y.S.2d 996,85 Misc.2d 349
PartiesDavid WEBER et al., Plaintiffs, v. Joseph KOWALSKI, Defendant.
CourtNew York Supreme Court

Joseph Worona, Poughkeepsie, for plaintiffs.

MacDonnell & Calger, Hartsdale, for defendant.

DECISION

JOSEPH F. GAGLIARDI, Justice.

THE FACTS

On July 15, 1972, on a road in Putnam County, David Weber, his wife and two infant children were travelling in his automobile when it collided with one driven by defendant. Thereafter, on January 5, 1974, Mr. Weber and his wife instituted a law suit against defendant in the Dutchess County Supreme Court and, subsequently, on February 23, 1975, Mr. Weber, as guardian ad litem on behalf of his two infant children and in his individual capacity, commenced another law suit against defendant in the same court. Both actions were consolidated by order of the court. A note of issue and statement of readiness were filed and application for a general preference made on unstated grounds. The pleadings, bills of particulars, and medical documents were submitted. On October 23, 1975, the application was denied by another justice of this court, who directed that the consolidated action be transferred to the Dutchess County, County Court upon the expiration of ninety days unless plaintiffs renewed the application. Plaintiffs have, in effect, so moved.

The complaints reveal that plaintiffs are seeking monetary recompense for personal injuries allegedly sustained in the automobile accident; five causes of action are asserted wherein Mrs. Weber asks for $50,000, the infant children $25,000 each (one cause of action), Mr. Weber seeks a total of $35,000 for loss of services (two causes of action), and requests $1,500 property damage. The note of issue contains a demand for a jury trial. The answers consist of general denials. The bills of particulars claim permanent injury to Mrs. Weber and the children. Of the medical documents submitted, only two relate to the children, the emergency room records of the Julia L. Butterfield Memorial Hospital which conclude that the infant Webers were 'covered with small flecks of glass, but no significant lacerations', and 'no significant injury detected at this time'. The bill of particulars submitted in the adult Webers' action reveals the following claims for special damages: physician services $196.00; hospital bills $116.00; six months' loss of earnings $2,400; eyeglasses $51.00; property damage $1,500. The bill of particulars in the infant Webers' action incorporates these claims for special damage by reference.

The emergency room record for Mrs. Weber contains a diagnosis of 'emotional distress'. She was admitted overnight and discharged the following day. Five physician letters are annexed regarding Mrs.

Weber's claims of injury. Two letters from Dr. Tulgan, dated 1972, indicate lack of severe injury, and conclude with the finding of 'essentially no disability'. Dr. Dahl finds that Mrs. Weber did not suffer an ocular disability. Dr. Brannan notes that he 'cannot support a claim for (Mrs. Weber's) disability'. Dr. Goodman's letter of January 1974 adds nothing.

PROCEDURAL BACKGROUND AND CLAIMS

As noted, another justice denied the application for a general preference and directed the transfer of these actions to County Court upon the expiration of ninety days after the date of his decision. Plaintiffs move for leave to reargue said denial alleging Inter alia jurisdictional problems since defendant is a nonresident of Dutchess County. There was (as presently) no opposition to the original application and, therefore, the motion is properly before me (CPLR 2221).

Plaintiffs advance several arguments to support the grant of their preference: 1) the amounts of the claims and the number of plaintiffs involved mandates that the cases be heard in the Supreme Court; 2) lack of jurisdiction over the person of the defendant; 3) denial of due process and deprivation of plaintiffs' right to a jury trial upon the court's predetermination of the potential amount in controversy; 4) violation of the equal protection clause since Dutchess County has not been included in Appellate Division orders pursuant to CPLR 325(d) which would authorize the County Court to grant judgment beyond its monetary limitation; and 5) denial of access to the forum of one's choice upon the transfer of the actions to another court.

HISTORICAL BACKGROUND--PRESENT POLICY

The Supreme Court of the State of New York has been traced back to the Supreme Court of the Colony of New York, the courts of the King's Bench, Common Pleas and Exchequer in England (Mtr. of Steinway, 159 N.Y. 250, 53 N.E. 1103; Decker v. Canzoner 256 App.Div. 68, 9 N.Y.S.2d 210; Temporary State Commission Report on the 1967 Constitutional Convention, Pamphlet No. 12, The Judiciary 143 (hereinafter cited as 'Comm. Report')). In 1846, the Supreme Court, as we now know it, was formed by the consolidation of the pre-existing Supreme Court and a consolidation of the offices of circuit judge and chancery judge (Id. p. 141). It is a statewide court of unlimited jurisdiction over causes of action known at common law or thereafter created, except that as to new causes of action statutorily created other courts may be granted concurrent jurisdiction (N.Y.Const. Art. VI, § 7(a), (c); Judiciary Law § 140--b; Mtr. of Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 209; Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793, 225 N.E.2d 503).

The County Court goes back to the earlier Court of Common Pleas, and is first called the County Court in this state's 1821 constitution (Comm. Report 176). In the civil area, and insofar as is pertinent here, the County Court is a court of limited jurisdiction (Gilbert v. York, 111 N.Y. 544, 19 N.E. 268) exercising concurrent jurisdiction with that of the Supreme Court in tort cases where the damages claimed do not exceed $6,000, or, as in Dutchess County, $10,000 (N.Y.Const. Art. VI, § 11(a); Judiciary Law § 190(3), (5)).

Since the two courts exercise concurrent jurisdiction over many matters the Supreme Court has, over the years, exercised judicial restraint, and ordinarily declined to act in those cases that could have been brought in the County Court (Comm. Report 145--146). Indeed, the writers of the 1967 report on the Judiciary for the Constitutional Convention noted (Comm. Report 146):

'Statutory provisions and judicial rules are designed to encourage actions to be brought in the inferior courts if the action is within their jurisdiction. X X X

'In the Supreme Court for New York County, the practice has developed of placing personal injury claims that cannot be expected to bring recovery of at least $10,000 on a non-preferred calendar. No, or virtually no, cases from this calendar have ever been tried in the Supreme Court since this practice was instituted in 1949. This calendar was established to encourage litigants voluntarily to transfer their cases to inferior courts.'

Throughout the history of this state, court delay has been a problem and diverse legislation was enacted from time to time, according preferences in trial to certain types of cases (Plachte v. Bancroft, Inc., 3 A.D.2d 437, 438--39, 161 N.Y.S.2d 892, 893--95). These legislative efforts are recorded at length in Morse v. Press Pub. Co., 71 App.Div. 351, 78 N.Y.S. 976 and reflect an occurrence that prevailed in virtually every state of the union (88 C.J.S. Trial §§ 31, 33; 75 Am.Jur.2d, Trial, § 25). However, it was generally recognized that the power to control court calendars was vested in the courts, and an act which mandated the precise day of trial for a preferred matter was declared unconstitutional (Riglander v. Star Co., 98 App.Div. 101, 90 N.Y.S. 772, affd. 181 N.Y. 531, 73 N.E. 1131). Thus, in Kriger v. Holland Furnace Co., 12 A.D.2d 44, 46--47, 208 N.Y.S.2d 285, 289, Presiding Justice Nolan stated:

'One of the powers which have always been recognized as inherent in the courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been their right to control the order of their business and to so conduct the same that the rights of all suitors before them may be safeguarded.'

Calendar congestion and delay have plagued the courts of this state for over a century, and in 1940, an effort was made to consolidate and To alleviate court delay in the tort area, the Appellate Division, First Department, in 1949 adopted a general preference rule (rule V) for the Supreme Court, New York County (see Clevenger's Practice Manual 1949 Annual, pp. 21--31 to 21--32). This rule was later extended to the Supreme Court, Bronx County, was adopted by the Supreme Court, Kings County in 1953 (rule 9) and by other courts in the Second Judicial Department. On March 1, 1962, the Appellate Division, Second Department, repealed all such rules applicable to the Supreme Courts within said department and replaced them with its own Special Preference Rule. The Appellate Divisions, Third and Fourth Departments also adopted simil rules (7 Carmody-Wait 2d, Calendar Practice; Note of Issue, §§ 50:32--50:38). fn1 The Second Department rule has been carried forward, with minor changes, into Part 674 of the Rules of the Appellate Division, Second Department (22 NYCRR).

simplify the procedure for obtaining preferences (Recommended Simplification of Preferences in Civil Cases, Sixth Annual Report of the N.Y. Judicial Council 267 (1940)); and section 140 of the Civil Practice Act was amended to empower the Appellate Divisions to adopt rules regulating preferences (also see former Rule 151 of the Rules of Civil Practice). Similar statutory provisions granting such power existed and continue to exist today in sections 85 and 86 of the Judiciary Law (Bailey v. Smith, 27 Misc.2d 168, 212 N.Y.S.2d 641 (Hopkins, J.)). Indeed, Rule 3401 of the Civil Practice Law and Rules Mandates that the Appellate Divisions...

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