Opinion
May 20, 1971
Appeal from the Monroe Special Term.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Henry, JJ.
Order unanimously modified in accordance with memorandum, and as so modified affirmed, without costs. Memorandum: The venue of the original action between the parties for breach of contract was in the City Court of the City of Rochester. The instant action arising out of the same matter, was commenced in Supreme Court. Plaintiff sought $7,236.61 and defendant asserted counterclaims totaling $2,990. After defendant served upon plaintiff a notice to admit, plaintiff by motion sought five types of relief: striking the notice to admit, holding defendant in contempt, awarding plaintiff extraordinary costs, referring the matter to City Court and restraining defendant from any further proceedings until compliance with a City Court order. Defendant by cross motion sought an order directing plaintiff to respond to his notice to admit. Special Term made an order which provided that the motion be granted and that the "matter is referred" to City Court, Civil Branch, of the City of Rochester. We assume, however, since the only relief warranted on the motion papers was a transfer of the action to City Court, that Special Term did not intend to grant any of the additional relief; consequently, the order should be modified to so indicate. ( Van Den Bosch v. Armstrong, 33 A.D.2d 636.) Supreme Court had authority under CPLR 325 (subd. [d]) and under the rule of this court (22 NYCRR 1024.20 [d]) to remove the case to a court of lesser jurisdiction. This is so even if, as defendant asserts, the court did not consider the complaint. When plaintiff seeks removal to an inferior court the statutory reference to the amount of damages sustained being less than demanded is merely directory and not mandatory. (See Frankel Assoc. v. Dun Bradstreet, 45 Misc.2d 607, 609.) Here, plaintiff requests removal to a court in which he could have originally commenced the action. Defendant's counterclaim is not barred by a monetary limit in that court. Consequently, there is no valid reason for opposing the removal as has been suggested by defendant. In these circumstances, the determination to transfer should not be disturbed. The word "referred" in the order we interpret as "transferred", not as a technical reference to a Referee as intrepreted by defendant. The other requests for relief contained in the notice of motion and cross motion are within the province of City Court after the case has been transferred there.