Martin v. Waldbaum's Supermarket

172 A.D.2d 804, 569 N.Y.S.2d 174, 1991 N.Y. App. Div. LEXIS 5391

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated November 29, 1989, which denied her motion to remove the action from the Civil Court, Queens County, to the Supreme Court, Queens County.

Ordered that the order is affirmed, without costs or disbursements.

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) (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 325:2, at 564). Here, the amount stated in the ad damnum clause was within the jurisdictional limits of the Civil Court, and no request for leave to amend the ad damnum clause was made. In the absence of an application to increase the ad damnum clause, the Supreme Court’s denial of removal was proper (see, Francilion v Epstein, 144 AD2d 633, 633-634; Huston v Rao, 74 AD2d 127, 130, 131; 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 325.11; Siegel, NY Prac § 25). Thompson, J. P., Kunzeman, Eiber, Rosenblatt and Ritter, JJ., concur.