You are here: / / MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT...
,

MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT).

The Second Department determined the motion to remove a personal injury action from Civil Court to Supreme Court (King’s County) should not have been granted because no motion to amend the ad damnum clause was made. The court noted that because the defendant was never served with notice of entry of the order granting plaintiff’s motion, the notice of appeal was timely filed:

The plaintiff … moved pursuant to CPLR 325(b) to remove the action to the Supreme Court, Kings County. In the order appealed … , the Supreme Court granted the motion. It is undisputed that a written notice of entry of the order … was never served on the defendant.

Since the defendant was not served with a proper notice of entry, the defendant’s time to appeal never commenced running, and its notice of appeal was therefore timely filed (see CPLR 5513[a]…).

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) … . 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 plaintiff’s motion to remove the action to the Supreme Court should have been denied … . Hart v New York City Hous. Auth., 2018 NY Slip Op 03123, Second Dept 5-2-18

​CIVIL PROCEDURE (MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))/REMOVAL (CIVIL PROCEDURE, MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))/CPLR 325 (MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))/CPLR 3025 (MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))/AD DAMNUM CLAUSE (REMOVAL, MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))/COMPLAINTS (AD DAMNUM CLAUSE, REMOVAL, MOTION TO REMOVE A PERSONAL INJURY ACTION FROM CIVIL COURT TO SUPREME COURT SHOULD NOT HAVE BEEN GRANTED BECAUSE IT WAS NOT ACCOMPANIED BY A REQUEST TO AMEND THE AD DAMNUM CLAUSE, NOTICE OF APPEAL WAS TIMELY BECAUSE DEFENDANT WAS NEVER SERVED WITH A NOTICE OF ENTRY (SECOND DEPT))

You might also like
THE PROPERTY TRANSFERRED TO THE DEFENDANT BY WILL UPON THE DEATH OF THE PROPERTY OWNER; THEREFORE THE ESTATE WAS NOT A NECESSARY PARTY IN THIS FORECLOSURE ACTION (SECOND DEPT).
SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH.
CITY DEMONSTRATED IT DID NOT HAVE PRIOR WRITTEN NOTICE OF A POTHOLE WHICH PLAINTIFF BICYCLIST RAN OVER, DEFENDANTS’ SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
PURCHASE PRICE OF GOLF COURSE NOT PROPER VALUATION FOR TAX PURPOSES, PURCHASE PRICE REFLECTED POTENTIAL VALUE OF THE LAND AS DEVELOPED.
DEFENDANTS’ SUMMARY JUDGMENT MOTION WAS PREMATURE, PLAINTIFF ENTITLED TO DISCOVERY TO FLESH OUT RELATIONSHIP AMONG PARTIES, RELATION-BACK DOCTRINE ALLOWED AMENDMENT OF COMPLAINT TO ADD PARTY, NOTICE OF CLAIM REQUIRED FOR SUIT AGAINST LONG ISLAND POWER AUTHORITY.
NO SHOWING THAT THE AMBULANCE SIREN OR EMERGENCY LIGHTS WERE IN USE WHEN THE INTERSECTION COLLISION OCCURRED, THEREFORE THERE WAS NO SHOWING THE RECKLESS DISREGARD STANDARD FOR EMERGENCY VEHICLES APPLIED, THE MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE INABILITY TO IDENTIFY THE SLIPPERY SUBSTANCE WHICH CAUSED PLAINTIFF’S SLIP AND FALL WAS FATAL TO THE LAWSUIT; ALLEGING THE FLOOR WAS SHINY OR SLIPPERY IS NOT ENOUGH, CRITERIA EXPLAINED IN SOME DEPTH (SECOND DEPT).
THE RECORD DID NOT SUPPORT THE FINDING THAT FATHER, DUE TO UNTREATED MENTAL ILLNESS, NEGLECTED ONE CHILD AND DERIVATIVELY NEGLECTED THE OTHER CHILDREN; THE CRITERIA FOR A NEGLECT FINDING IN THIS CONTEXT ARE LAID OUT IN DETAIL (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2024 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

BANK DID NOT DEMONSTRATE IT ACTED IN ACCORDANCE WITH GENERAL BANKING RULES OR... DEFENDANTS’ OWN MOTION PAPERS RAISED A QUESTION OF FACT WHETHER THE PARTIES...