[*1]
Matter of Collection Assoc., JV. v Rosenberg
2005 NY Slip Op 51657(U) [9 Misc 3d 1118(A)]
Decided on October 13, 2005
White Plains City Court
Friia, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 13, 2005
White Plains City Court


In the Matter of Collection Associates, JV., Petitioner,

against

Jeffrey Rosenberg, Respondent.




CV 2123/05



Lehrman, Kronick & Lehrman, LLP

Attorneys for Petitioner

By: Stephen J. Lehrman, Esq.

199 Main Street, Suite 400

White Plains, New York 10601

Jeffrey Rosenberg

Defendant Pro Se

Jo Ann Friia, J.

In this special proceeding, the Court must examine the scope of its limited subject matter jurisdiction and determine what effect, if any, a Supreme Court transfer order has on the City Court's jurisdiction to direct the sale of real property for the purpose of satisfying a money judgment.

Procedural Background


On November 12, 2004 petitioner commenced an action against respondent in the City Court of White Plains to recover damages in the sum of $12,227.00 based upon a breach of contract and an account stated. Respondent failed to appear and a default judgment was granted in favor of petitioner (CPLR 3215 [a]). The judgment was entered in the City Court on January 20, 2005 and a transcript issued (UCCA § 1502). On January 26, 2005 petitioner filed the transcript of judgment with the Westchester County Clerk (CPLR § 5018 [a]). Thereafter, respondent served and filed an order to show cause in the City Court seeking to vacate the default judgment (CPLR 5015 [a]). The application was denied. In furtherance of enforcement of the money judgment, petitioner then served a subpoena upon respondent (CPLR 5224) and an execution with notice to the garnishee (CPLR § 5232 [a]).

On July 15, 2005 petitioner commenced a special proceeding in Supreme Court, Westchester County pursuant to CPLR § 5206 (e). The petition requested that the Supreme Court grant an order directing the sheriff to seize and sell a certain parcel of real property owned by respondent and located in Hartsdale, New York to satisfy the money judgment. By decision dated September 19, 2005 the Supreme Court ordered that the special proceeding be "transferred to the City Court of White Plains pursuant to CPLR § 5221 (a) (1)." The City Court received the transfer from the county clerk on September 27, 2005.

[*2]Discussion


The Supreme Court has inherent authority pursuant to the New York State Constitution, article VI, § 19(a) "to transfer any action or proceeding except one over which it shall have exclusive jurisdiction which does not depend upon the monetary amount sought, to any other court having jurisdiction of the subject matter within the judicial department provided that such other court has jurisdiction over the classes of persons named as parties." See Wynne v. Destaso, 2 AD3d 841 (2d Dept. 2003); Drew v. St. Catherine A.M.E. Zion Church, 273 AD2d 344 (2d Dept. 2000).

Additional authority for the transfer of a matter to the lower court is set forth in the Civil Practice Law and Rules. CPLR § 325(c) provides as follows: "Where it appears that the amount of damages sustained are less than demanded, and a lower court would have had jurisdiction of the action but for the amount of damages demanded, the court in which an action is pending may remove it to the lower court upon reduction of the amount of damages demanded to a sum within the jurisdictional limits of the lower court and upon consent of all parties to the action ...." Further, CPLR § 325 (d) states the following: "The appellate division, if it determines that the calendar conditions in a lower court so permit, may by rule provide that a court in which an action is pending may, in its discretion, remove such action without consent to such lower court where it appears that the amount of damages sustained may be less than demanded, and the lower court would have had jurisdiction but for the amount of damages demanded. If the action is so removed, then the verdict or judgment shall be subject to the limitation of monetary jurisdiction of the court in which the action was originally commenced ...." See 22 NYCRR § 202.13.

In transferring this proceeding to the City Court, the Supreme Court cited CPLR § 5221 (a) (1) as statutory authority for its decision. Notably, this section does not confer any authority or establish a procedure for the transfer of a matter to the City Court. Moreover, the Supreme Court decision makes no determination with respect to whether the parties and/or relief sought satisfy the City Court's jurisdictional prerequisites. Notwithstanding the foregoing, this Court is without power to review the propriety of the Supreme Court decision (see Unterberg v. Scarsdale Improvement Corporation, 128 Misc 2d 873 [Sup. Ct. West. Co. 1985]) or examine the factual or legal basis used by the Supreme Court to order the transfer (see Vano v. Engert, N.Y.L.J, September 10, 1999, at 29, col. 5 [City Ct. of White Plains]).

However, upon a transfer the lower court will not automatically acquire subject matter jurisdiction simply because the Supreme Court had jurisdiction when the action was originally commenced (see e.g. BLF Realty Holding Corp. v. Kasher, 183 Misc 2d 953 [App. Term 1st Dept. 2000]). Also, jurisdiction of the subject matter cannot be conferred on the court by consent of the parties (Id. at 954). Nor can subject matter jurisdiction be created by courts themselves, whether erroneously, accidentally, or intentionally (see Briscoe v. White, 8 Misc 3d 1 [App. Term 9th & 10th Jud. Dists. 2004]).

The Appellate Division has held that "outside the power specifically conferred by statute, courts have no general authority to direct the sale of real property" (see The City of New York v. L.J.W.P. Realty Co., LLC, 250 AD2d 450 [1st Dept. 1998]). Turning to the relevant statute(s), it is evident that the City Court is without subject matter jurisdiction over this special proceeding. UCCA § 1504 states in relevant part that "[a]n execution issued out of this court may be levied [*3]only against personal property of the judgment-debtor." UCCA § 1505 further proscribes this Court's power to direct the sale of real property: "[a]n execution out of this court may not be levied against real property." Last, UCCA § 1506 sets forth the procedure to be followed and the forum in which a special proceeding pursuant to CPLR 5206 (e) must be commenced: "[w]here the real property of the judgment-debtor has been duly attached under an order of attachment that has not been vacated, the execution may not issue out of this court. In such a case, a transcript of the judgment must be filed and docketed with the county clerk and the execution issued out of supreme court."

Conclusion


In the absence of statutory authority, the City Court is without subject matter jurisdiction to direct the sale of real property to satisfy a money judgment (see e.g. The Lambs, Inc. v. Diven, 2001 WL 1851677 [Civ. Ct. NY Co.]; Cabs Demonstration Federal Credit Union v. Cruz, 98 Misc 2d 1116 [Civ. Ct. Kings Co. 1979]; Stamen Building Materials Corp. v. Gould, 79 Misc 2d 97 [Dist. Ct. Suffolk Co.]; Kavanagh v. McGrory, N.Y.L.J., September 2, 1998, at 24, col. 6 [Civ. Ct. Bronx Co.]; Alese v. Efik Realty Corp., N.Y.L.J., June 12, 1996 at 33, col. 3 [Civ. Ct. Bronx Co.]; see also Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 29A, UCCA §§ 1504, 1505) and the Supreme Court transfer order does nothing to alter this conclusion.

On the Court's own motion, the proceeding is dismissed for lack of subject matter jurisdiction (see Fry v. Village of Tarrytown, 89 NY2d 714 [1997]; Robinson v. Oceanic Steam Nav. Co., Limited, 112 NY 315 [1889]).

THIS DECISION CONSTITUTES THE ORDER OF THE COURT


Dated:White Plains, New York

October 13, 2005______________________

Hon. Jo Ann Friia

City Court Judge

TO:

9 Verne Place

Hartsdale, New York 10530