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Powers v. Smith

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 26, 2015
2015 N.Y. Slip Op. 50483 (N.Y. App. Term 2015)

Opinion

2013-1848 K C

03-26-2015

Alisa D. Powers, Respondent, v. Alaric Smith, Appellant.


PRESENT: : , SOLOMON and ELLIOT, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered June 27, 2013. The order denied defendant's motion to vacate a judgment and to dismiss the action.

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

Plaintiff commenced this small claims action to recover for defendant's failure to return her security deposit and certain property. The matter was submitted for arbitration, and defendant's wife appeared on his behalf at the arbitration hearing. Following the hearing, the arbitrator awarded plaintiff the principal sum of $2,000. A judgment was subsequently entered on April 25, 2013 awarding plaintiff the total sum of $2,020. Thereafter, defendant moved to vacate the judgment and to dismiss the small claims action for lack of subject matter jurisdiction, on the ground that defendant lives in Virginia and has no office for the transaction of business or regular employment in New York City, which motion plaintiff opposed. By order dated June 27, 2013, the Civil Court denied defendant's motion.

It is well settled that " a court's lack of subject matter jurisdiction is not waivable, but may be [raised] at any stage of the action . . . and the court may . . . at any time, when its attention is called to the facts . . . dismiss the action' " (Financial Indus. Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008], quoting Matter of Fry v Village of Tarrytown, 89 NY2d 714, 718 [1997]). Section 1801 of the New York City Civil Court Act, which sets forth the subject matter jurisdiction of the Small Claims Part of the court, provides, 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 the city of New York." A review of the record on appeal indicates that the action was commenced by serving defendant at a building in Brooklyn that defendant owns and in which plaintiff formerly resided. Although defendant owns the Brooklyn building, his motion papers established that he does not live in the building or anywhere else in New York City, and that he does not have an office for the transaction of business or a regular employment in New York City. Consequently, the Civil Court lacks subject matter jurisdiction over this small claims action.

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

We note that, if she be so advised, plaintiff may commence a new action in the regular part of the Civil Court (see CCA 404 [a]).

Weston, J.P., Solomon and Elliot, JJ., concur

Decision Date: March 26, 2015


Summaries of

Powers v. Smith

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 26, 2015
2015 N.Y. Slip Op. 50483 (N.Y. App. Term 2015)
Case details for

Powers v. Smith

Case Details

Full title:Alisa D. Powers, Respondent, v. Alaric Smith, Appellant.

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Mar 26, 2015

Citations

2015 N.Y. Slip Op. 50483 (N.Y. App. Term 2015)
13 N.Y.S.3d 852