Summary
following transfer of action to Civil Court, Supreme Court lacked jurisdiction to hear a posttransfer summary judgment motion
Summary of this case from Moran v. Regency Savings Bank, F.S.BOpinion
April 7, 1986
Appeal from the Supreme Court, Kings County (Kramer, J.).
Order reversed, on the law, with costs, and motion dismissed for lack of jurisdiction.
Our review of the original file maintained by the Clerk of the Civil Court with respect to this action has revealed that an order transferring the matter from the Supreme Court to the Civil Court, pursuant to CPLR 325 (c), signed by Justice Duberstein, was entered in the office of the Clerk of Kings County on May 7, 1984. By virtue of that order the Supreme Court relinquished subject matter jurisdiction as of that date (see, Forest-Fehlhaber v. State of New York, 74 A.D.2d 272; Mather v Ginsroe, Inc., 45 Misc.2d 674; McLaughlin, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C326:1, p 468), and therefore had no authority to consider the plaintiffs' subsequent motion for summary judgment (see, Jones v. Robinson, 81 A.D.2d 907; Komorowski v. Smith, 74 A.D.2d 841). That the parties continued to litigate the matter in the Supreme Court after it had been transferred and failed to raise the existence of the transfer order before Special Term does not alter this result since subject matter jurisdiction cannot be conferred by consent and a defect in subject matter jurisdiction cannot be waived (see, Robinson v. Oceanic Steam Nav. Co., 112 N.Y. 315, 324). Lazer, J.P., Bracken, Brown and Kooper, JJ., concur.