Sanchez v. Walden Terrace, Inc.

140 A.D.3d 505, 32 N.Y.S.3d 490

Opinion

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 5, 2015, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to remove his action pending in Civil Court, Bronx County, to Supreme Court, Bronx County, unanimously affirmed, without costs.

Plaintiff commenced this action in 2008 seeking $5,000 in termination pay from defendant, his former employer. Plaintiff filed a notice of trial in 2013 stating that he was seeking about $17,000 in damages, and, after a jury was picked, moved in Civil Court for leave to amend the complaint to formally assert claims under the Labor Law, including claims for liquidated damages and attorney’s fees. After leave to amend was granted, plaintiff moved in Supreme Court to have the case removed because his claims, including accrued attorney’s fees, allegedly exceeded the $25,000 jurisdictional limit of the Civil Court.

Supreme Court providently exercised its discretion in denying plaintiff’s motion (see CPLR 325 [b]), since plaintiff did not provide an evidentiary basis for determining the amount of reasonable attorney’s fees incurred in prosecuting his claims or adequately explain the delay in making the motion (see David v Astrologo, 24 AD3d 251 [1st Dept 2005]; compare Platt v Flesher, 115 AD3d 468, 468-469 [1st Dept 2014] [motion to remove action should have been granted where the plaintiff established by affidavit of merit that her alleged damages exceeded Civil Court’s jurisdictional maximum]).

Concur— Friedman, J.P., Sweeny, Webber and Gesmer, JJ.