Francilion v. Epstein

144 A.D.2d 633, 535 N.Y.S.2d 65, 1988 N.Y. App. Div. LEXIS 12435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1988
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Held, J.), dated September 17, 1987, which denied his motion to remove the action from the Civil Court of the City of New York to the Supreme Court, and (2) an order of the same court, dated February 26, 1988, which denied his renewed motion for the same relief.

Ordered that the orders are affirmed, with one bill of costs.

Proper procedure dictates that a motion to remove an action from the Civil Court to the Supreme Court pursuant to CPLR 325 (b) must be accompanied by a request for leave to amend the ad damnum clause of the complaint pursuant to CPLR 3025 (b). In this case, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and the request for leave to amend was not made. In the absence of an application to increase the ad damnum clause, the Supreme Court’s denial of removal was proper (see, Huston v Rao, 74 AD2d 127, 130-131; Daniels v Russell, 81 Misc 2d 775, 777; 1 Weinstein-Korn-Miller, NY Civ Prac Ü 325.11; Siegel, NY Prac § 25).

Furthermore, it was not an improvident exercise of discretion to deny the application to renew the request for removal where the plaintiff failed to offer any excuse for not submitting the additional facts in the original application (see, McRory v Craft Architectural Metals Corp., 112 AD2d 358, 359). Mangano, J. P., Bracken, Eiber, Spatt and Sullivan, JJ., concur.