Opinion
604770/19
08-26-2019
The RAL SUPPLY GROUP, Plaintiff, v. John L. DESANTIS dba Desantis Heating and Cooling, Defendant.
William M. Stein, Esq. Stein & Stein, LLP One Railroad Square Haverstraw, New York 10927 For Plaintiff
William M. Stein, Esq.
Stein & Stein, LLP
One Railroad Square
Haverstraw, New York 10927 For Plaintiff
Carmen Victoria St. George, J. Plaintiff moves this Court unopposed for an Order transferring this action from Supreme Court, Suffolk County to the Supreme Court, Nassau County "due to an e-filing error on behalf of plaintiff." Plaintiff states that this action is brought "to recover an indebtedness due and owing under a Contract."
According to the complaint, the sum of $2,929.84, together with interest, is sought under the two causes of action alleged therein sounding in 1) goods sold and accepted and 2) account stated.
The summons states that "[p]laintiff designates Nassau County as the place of trial. The basis of the venue is plaintiff's place of business." The summons and complaint bear the designation of Nassau County Supreme Court in their respective captions; however, the summons and complaint were electronically filed in Suffolk County on March 11, 2019.
The summons also states that plaintiff's "principal place of business" is "275 Wagaraw Road, Hawthorne, NJ, 07506."
The affidavit of service avers that service of the summons and complaint was made upon the mother of John L. Desantis on May 3, 2019. According to plaintiff's counsel, when the defendant did not submit an answer, counsel attempted to electronically file a default judgment against defendant. It appears from Exhibit C that the attempt to file the default judgment was made on or about June 24, 2019. The proposed Clerk's Judgment was returned by NYSCEF, payment for the judgment was stopped, and NYSCEF personnel (Whitney, E.) wrote, "[y]our summons and complaint states Nassau County. Please upload an amended summons and complaint." Apparently, the discrepancy between the caption of this action and the filing made in Suffolk County was not caught by counsel or NYSCEF personnel when the summons and complaint were filed on March 11, 2019.
Plaintiff's counsel acknowledges that the error in filing was eventually brought to counsel's attention by NYSCEF personnel. Counsel seeks transfer of this action to Nassau County "without the necessity of refiling the Summons and Verified Complaint or reserving the defendant and e-filing Affidavit of Service in relation to this matter."
Plaintiff does not articulate a specific statutory or precedential basis upon which it relies for the relief requested; therefore, to determine the instant application, this Court finds it necessary to explore whether there is a proper basis to grant the motion in the context of the unusual circumstances presented here.
CPLR § 510, which specifies the grounds for a change of venue, does not provide an avenue of relief for plaintiff. Subdivisions 2 and 3 allowing for change of venue based upon a need for an impartial trial and the convenience of material witnesses are not implicated here. Subdivision 1 providing for a change of venue because the county designated for trial is not a proper county is inapposite since Nassau County, which was designated by plaintiff, appears to be the proper county for a trial of this action based upon a reading of the summons ( CPLR § 503 [a] ).
Moreover, a motion for change of venue based on CPLR § 510 (1) may only be made by a defendant ( Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C510:1 ).
Based upon the moving papers, it is clear that plaintiff's mistake was not in the initial designation of the county for trial, but in executing the act of filing the summons and complaint in the NYSCEF system. Thus, the well-settled principle that a plaintiff's initial improper choice of venue forfeits her right to select the place of venue is not dispositive of the circumstances presented here (cf . Negron v. Nouveau Elevator Industries, Inc. , 104 A.D.3d 655, 961 N.Y.S.2d 229 [2d Dept. 2013] ; Bailon v. Avis Rent a Car, Inc ., 270 A.D.2d 439, 705 N.Y.S.2d 607, 705 N.Y.S.2d 607 [2d Dept. 2000] ; Llorca v. Manzo , 254 A.D.2d 396, 679 N.Y.S.2d 83 [2d Dept. 1998] ; Ward v. National Car Rental , 226 A.D.2d 449, 640 N.Y.S.2d 593 [2d Dept. 1996] ; Tomasulo v. Berland , 217 A.D.2d 655, 629 N.Y.S.2d 798 [2d Dept. 1995] ).
It also appears that CPLR § 325 (a) does not constitute a ground for removal since that provision is intended to "address[ ] the problem confronted by a plaintiff who has made a mistake in the choice of court in which the action was commenced. In other words, plaintiff sued in a court that lacked subject matter jurisdiction" ( Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C325:1 ). This Court, however, has subject matter jurisdiction over this type of action.
Without an apparent statutory basis for the relief requested, it is appropriate to take "a stroll through the State Constitution" ( Jeng v. Barrow-Jeng , 58 Misc.3d 911, 912, 68 N.Y.S.3d 859 [Sup. Ct. Monroe County 2018] ). Article 6, § 19 (a) of the Constitution of the State of New York provides in relevant part that, "[t]he supreme court may transfer any action or proceeding, except one over which it shall have exclusive jurisdiction which does not depend upon the monetary amount sought, to any other court having jurisdiction of the subject matter within the judicial department provided that such other court has jurisdiction over the classes of persons named as parties."
There is no question that the Supreme Court, Nassau County is a court of concurrent jurisdiction with this Court, within the Second Judicial Department, and that it also has subject matter jurisdiction over this contractual indebtedness action, as well as jurisdiction over the classes of persons named as parties in this action.
"The most important of the constitutional provisions in the context of the present discussion is the first sentence of subdivision (a) [of Article 6, § 19 ]. As a result of this provision, the Supreme Court may, on its motion, transfer any action to another court of concurrent jurisdiction" ( 2-325 Weinstein-Korn-Miller, NY Civ Prac CPLR 325.04 ). CPLR § 325, drafted prior to the constitutional revision, "is in some respects inconsistently narrower" than the Constitution, and "courts have also concluded that the constitutional provisions that supersede narrower legislation must be regarded as self executing unless they refer to legislative action or contain the phrase ‘as may be provided by law’ " ( Id .; see also People v. Correa , 15 N.Y.3d 213, 225, 907 N.Y.S.2d 106, 933 N.E.2d 705 [2010] ; Jeng , supra ; Haas v. Scholl , 68 Misc.2d 197, 325 N.Y.S.2d 844 [Sup. Ct. Westchester County 1971] ).
The relief requested here, to transfer this action to a court of concurrent jurisdiction as set forth in the first sentence of the relevant constitutional provision discussed above, rather than to transfer to itself an action or proceeding, distinguishes the case at bar from the presently controlling authority in the Second Department found in Dalliessi v. Marbach, 56 A.D.2d 858, 392 N.Y.S.2d 316 [2d Dept. 1977]. In the Dalliessi decision, the Court found that the introductory phrase of the second sentence of Article 6, § 19, "[a]s may be provided by law , the supreme court may transfer to itself..." (emphasis added), limits the power of the supreme court by requiring that there be legislative authority set forth in statute for the transfer. In other words, the power of the supreme court to transfer an action or proceeding to itself is not self-executing (see People v. Kennedy , 43 Misc.3d 1201 [A], 986 N.Y.S.2d 867 [North Castle Just. Ct. 2014] [obligated to follow Dalliessi , the Justice Court determined that there was legislative authority for the transfer of that action).
Accordingly, by the authority granted to the supreme court by the New York State Constitution, Article 6, § 19 (a), plaintiff's application to transfer this action to the Supreme Court, Nassau County is granted without the necessity of refiling the summons and verified complaint or re-serving the defendant and e-filing the affidavit of service in this matter. Documents numbered 1 through 11 reflected as having been filed in the NYSCEF system shall remain as filed when this matter is transferred to Supreme Court, Nassau County.
The plaintiff shall serve defendant, and the Suffolk County Clerk, with a copy of this order within 15 days from the date of entry of this order.
The Suffolk County Clerk is directed to transfer the file of this matter to the Nassau County Clerk, who shall assign a Nassau County Supreme Court index number.
The foregoing constitutes the Decision and Order of this Court.