Leighton v. Lowenberg

2023 NY Slip Op 01943

Opinion

Leighton v Lowenberg (2023 NY Slip Op 01943)

Leighton v Lowenberg

2023 NY Slip Op 01943

Decided on April 13, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 13, 2023
Before: Renwick, A.P.J., Moulton, Shulman, Rodriguez, Pitt-Burke, JJ.

Index No. 115379/08 Appeal No. 40 Case No. 2022-05440

[*1]Patricia Leighton, Plaintiff-Appellant,

v

Marc Lowenberg, D.D.S., et al., Defendants-Respondents.

Andrew Molbert, New York, for appellant.

Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondents.

Order, Supreme Court, New York County (Debra James, J.), entered March 17, 2022, which denied plaintiff's motion to vacate an order, same court (Deborah A. Kaplan, J.), entered on or about August 21, 2018, which sua sponte transferred the action to the Civil Court of the City of New York pursuant to CPLR 325(d) and 22 NYCRR 202.13(a), unanimously affirmed, without costs.

Supreme Court did not abuse its discretion in denying plaintiff's motion, which, in effect, seeks removal to Supreme Court of an action that had been transferred to Civil Court pursuant to CPLR 325(d). Plaintiff has unreasonably delayed seeking such relief, and has not shown that it has been prejudiced by reason of the transfer (see Genson v Sixty Sutton Corp., 74 AD3d 560 [1st Dept 2010] [Transfer was not an improvident

exercise of discretion, since the "action was commenced in the Supreme Court and . . . the monetary jurisdiction of that court . . . will govern any recovery" quoting Tobias v New York Hosp., 279 AD2d 374, 374 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 13, 2023