Zuckermann v. Spector

Appellate Division of the Supreme Court of New York

Zuckermann v. Spector

287 A.D.2d 402, 731 N.Y.S.2d 715, 2001 N.Y. App. Div. LEXIS 10147

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 30, 2001

StatusPublished

Cited by7 cases

This text of 287 A.D.2d 402 (Zuckermann v. Spector) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zuckermann v. Spector, 287 A.D.2d 402, 731 N.Y.S.2d 715, 2001 N.Y. App. Div. LEXIS 10147 (N.Y. Ct. App. 2001).

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Opinion

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 12, 2000, which denied plaintiffs’ motion to re-transfer this action from Civil Court to Supreme Court pursuant to CPLR 325 (b), and for partial summary judgment declaring that plaintiffs are not indebted to defendant for further legal fees and enjoining defendant from asserting charging liens, unanimously modified, on the law, to re-transfer the action to Supreme Court, and otherwise affirmed, without costs.

The declaratory relief sought by plaintiffs — that defendant was discharged for cause and therefore is not entitled to any compensation for legal services rendered — is not within Civil Court’s subject matter jurisdiction. Accordingly, the action should not have been transferred to that court pursuant to [403]*403CPLR 325 (d), and should be re-transferred to Supreme Court pursuant to CPLR 325 (b) (see, Decana, Inc. v Ross Intl., 227 AD2d 208). Since subject matter jurisdiction cannot be conferred on Civil Court by an improper transfer or consent of the parties, plaintiffs’ failure to appeal the CPLR 325 (d) order, and 4x/2-year delay in seeking a re-transfer to Supreme Court, does not require retention of the action in Civil Court (cf., BLF Realty Holding Corp. v Kasher, 183 Misc 2d 953 [App Term 1st Dept]). With respect to plaintiffs’ motion for partial summary judgment, we note the absence of disclosure, and, on the present record, find issues of fact precluding a finding that plaintiffs’ discharge of defendant was for cause.

We have considered and rejected plaintiffs’ argument that defendant’s failure to assert his charging liens as a counterclaim in the instant action constituted a waiver thereof, and issues of fact otherwise preclude finding such a waiver. Concur— Williams, J. P., Andrias, Wallach, Lerner and Marlow, JJ.

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—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 12, 2000, which denied plaintiffs’ motion to re-transfer this action from Civil Court to Supreme Court pursuant to CPLR 325 (b), and for partial summary judgment declaring that plaintiffs are not indebted to defendant for further legal fees and enjoining defendant from asserting charging liens, unanimously modified, on the law, to re-transfer the action to Supreme Court, and otherwise affirmed, without costs.

The declaratory relief sought by plaintiffs — that defendant was discharged for cause and therefore is not entitled to any compensation for legal services rendered — is not within Civil Court’s subject matter jurisdiction. Accordingly, the action should not have been transferred to that court pursuant to [403]*403CPLR 325 (d), and should be re-transferred to Supreme Court pursuant to CPLR 325 (b) (see, Decana, Inc. v Ross Intl., 227 AD2d 208). Since subject matter jurisdiction cannot be conferred on Civil Court by an improper transfer or consent of the parties, plaintiffs’ failure to appeal the CPLR 325 (d) order, and 4x/2-year delay in seeking a re-transfer to Supreme Court, does not require retention of the action in Civil Court (cf., BLF Realty Holding Corp. v Kasher, 183 Misc 2d 953 [App Term 1st Dept]). With respect to plaintiffs’ motion for partial summary judgment, we note the absence of disclosure, and, on the present record, find issues of fact precluding a finding that plaintiffs’ discharge of defendant was for cause.

We have considered and rejected plaintiffs’ argument that defendant’s failure to assert his charging liens as a counterclaim in the instant action constituted a waiver thereof, and issues of fact otherwise preclude finding such a waiver. Concur— Williams, J. P., Andrias, Wallach, Lerner and Marlow, JJ.

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Bluebook (online)

287 A.D.2d 402, 731 N.Y.S.2d 715, 2001 N.Y. App. Div. LEXIS 10147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zuckermann-v-spector-nyappdiv-2001.

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