Opinion
2003-1617 KC.
Decided October 29, 2004.
Appeal by defendants Fairfield Presidental Associates and Fairfield Presidential Management from an order of the Civil Court, Kings County (D. Silber, J.), entered on July 29, 2003, denying their motion to dismiss the complaint.
Order unanimously reversed without costs and appellants' motion to dismiss the complaint granted unless, within 30 days of the date of the order entered hereon, plaintiff serves and files in the court below a written stipulation, signed by her, consenting to reduce the ad damnum clause of her complaint so as to bring the cause of action within the court's jurisdiction; in the event that plaintiff so stipulates, the order is affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
We are of the opinion that the summons and indorsed complaint together with the application for a pro se summons, which was attached thereto, adequately apprised defendant of the "nature and substance" of plaintiff's claim (CCA 902 [a] [1]). The complaint herein alleges facts establishing one primary right of the plaintiff and one wrong done by the defendant which involved that right ( see Payne v. N.Y., Susquehanna W.R.R. Co., 201 NY 436).
Inasmuch as plaintiff's endorsed complaint stated but one cause of action seeking damages exceeding the $25,000 monetary jurisdictional limit of the court (CCA 202), the Civil Court lacked subject matter jurisdiction. Thus, the order is reversed and appellants' motion to dismiss the complaint granted unless plaintiff stipulates to reduce the ad damnum clause so as to bring her claim within the Civil Court's jurisdictional limit ( see Siegel, NY Prac § 23, at 23-24 [3d ed]; Simmons v. Simmons, 2 Misc 3d 536; B R Textiles Corp. v. Empire Bias Binding Co., 126 Misc 2d 965). We note that a court cannot, on its own, reduce the amount sought in a complaint in order to bring the case within the court's jurisdictional limit ( see Simmons v. Simmons, 2 Misc 3d 536, supra).
We further note that another option available to the plaintiff is provided by CPLR 205 (a). In the event that this action is dismissed for lack of subject matter jurisdiction, plaintiff has six months from the date of dismissal to recommence her action regardless of the running of the statute of limitations ( see CPLR 205 [a]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C205:3, at 482; Parker v. Mack, 61 NY2d 114).
Although the state constitution authorizes the Civil Court to transfer a case which is beyond its subject matter jurisdiction to the Supreme Court so long as the case was not previously transferred to it by the Supreme Court (NY Const, art VI, § 19 [f]), and it may do so upon motion of the plaintiff ( Simmons v. Simmons, 2 Misc 3d 536, supra), or upon its own motion ( B R Textiles Corp. v. Empire Bias Binding Co., 126 Misc 2d 965, supra; Kemper v. Transamerica Ins. Co., 61 Misc 2d 7), plaintiff has not sought such a transfer, and a sua sponte transfer is beyond the purview of this appeal.