Giordano v. Clark

Full title: Justin A. Giordano, Respondent, v. Colleen Denise Clark, Appellant.

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

Date published: May 23, 2017

2017 N.Y. Slip Op. 50725 (N.Y. App. Term 2017)

61 N.Y.S.3d 190

Opinion

NO.2016-1093 N C

05-23-2017

Justin A. Giordano, Respondent, v. Colleen Denise Clark, Appellant.

Connick, Myers, Haas & McNamee, P.L.L.C. (Barbara A. Myers, Esq.), for appellant. Justin A. Giordano, respondent pro se.

ANTHONY MARANO, P.J., ANGELA G. IANNACCI, JERRY GARGUILO, JJ

PRESENT: :

Connick, Myers, Haas & McNamee, P.L.L.C. (Barbara A. Myers, Esq.), for appellant. Justin A. Giordano, respondent pro se.

Appeal from an order of the District Court of Nassau County, First District (Joseph B. Girardi, J.), dated April 27, 2016. The order denied defendant's motion to dismiss the action.

ORDERED that the order is reversed, without costs, and defendant's motion to dismiss the action is granted.

Plaintiff commenced this small claims action in Nassau County District Court alleging veterinary malpractice and seeking $5,000 for the death of the family dog. Defendant moved to dismiss the action, arguing a lack of jurisdiction on the ground that defendant lives in New Jersey and has no office for the transaction of business or regular employment in New York State. By order dated April 27, 2016, the District Court denied defendant's unopposed motion.

Section 1801 of the Uniform District Court Act, which governs the subject matter jurisdiction of the Small Claims Part of the District Court, states, insofar as is relevant to this appeal, that the term "small claims" means a money action not in excess of $5,000, "provided that the defendant either resides, or has an office for the transaction of business or a regular employment, within a district of the court in the county." A review of the record on appeal indicates that defendant was served at the home of her parents in Merrick, New York. Defendant's motion papers established that she had not lived in Merrick or anywhere else in the State of New York since 2013, and that she does not have an office for the transaction of business or a regular employment in New York. There was nothing submitted to rebut the showing by defendant that she had no bona fide intent to retain Nassau County as a residence (see Yaniveth R. v LTD Realty Co., 27 NY3d 186 [2016]). Consequently, the Small Claims Part of the District Court lacks jurisdiction over this action (see Powers v Smith, 47 Misc 3d 134[A], 2015 NY Slip Op 50483[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is reversed and defendant's motion to dismiss the action is granted.

Marano, P.J., and Iannacci, J., concur.

Garguilo, J., taking no part. Decision Date: May 23, 2017