The Plaintiff commenced this action on November 15, 2006. Issue was joined on or about December 18, 2006. The Plaintiff now moves for an order granting the Plaintiff summary judgment. The Defendants have not opposed this motion.

The Plaintiff's Complaint sets forth four causes of action against each of the Defendants. The First Cause of Action alleges the failure to pay rent for the months of September through November, 2006, inclusive, in the total sum of $10,500.00. The Second Cause of Action seeks $420.00 in late charges. The Third Cause of Action seeks an unspecified sum for continuous and accruing unpaid rent and late charges. The Fourth Cause of Action seeks an unspecified sum for counsel fees.

In support of its motion, the Plaintiff submits the affidavit of Robert Shtulman, the Plaintiff's Managing Partner. Mr. Schtulman alleges, and documents, that on or about March 1, 2006 the Defendant, H & Y Cleaners, Inc., entered into a ten year lease agreement with the Plaintiff, to commence on March 1, 2006, guaranteed by the Defendants, Bong Won Han and Joy Han, for premises 82-10 Glen Cove Road, Greenvale, New York. Mr. Schtulman further alleges that the Defendants ceased paying rent in September, 2006, and have not paid rent since, although they vacated the premises on or about September 1, 2006. According to the Plaintiff, rent was to be paid at the rate of $3,500.00 per month. Based thereon, the Plaintiff seeks the entry of a judgment in the sum of $31,500.00, representing the total rent allegedly due for the period of September 1, 2006 through May 31, 2007. In addition thereto, the Plaintiff seeks a judgment in the sum of $1,260.00 for late charges to be paid in accordance with the aforesaid [*2]lease, along with a sum for counsel fees yet to be determined.

A judgment entered in the absence of subject matter jurisdiction is void. Editorial Photocolor Archives, Inc. v. Granger Collection, 61 NY2d 517, 474 NYS2d 964 (1984); In re Messaros, 262 AD2d 322, 692 NYS2d 90 (2nd Dept.1999) Moreover, in the absence of subject matter jurisdiction a court is "without competence to adjudicate the kind of cause before it (citations omitted)." Nuernberger v. State, 41 NY2d 111, 390 NYS2d 904 (1976); Lacks v. Lacks, 41 NY2d 71, 390 NYS2d 875 (1976) The lack of subject matter jurisdiction may be raised at any time; First Union National Bank v. Incorporated Village of Hempstead, 33 AD3d 658, 823 NYS2d 111 (2nd Dept. 2006); Morrison v. Budget Rent A Car Systems, Inc., 230 AD2d 253, 657 NYS2d 721 (2nd Dept.1997), and neither the parties nor the court may consent to such jurisdiction when none exists. In re Shaw, 96 NY2d 7, 747 NE2d 1272 (2001); Becker v. Becker, 186 AD2d 106, 588 NYS2d 45 (2nd Dept. 1992) Indeed, as noted in Robinson v. Oceanic Steam Nav. Co., 112 NY 315, 19 N.E. 625 (1889), "the court may ex mero motu, at any time when its attention is called to the facts, refuse to proceed further, and dismiss the action." See also: Fry v. Village of Tarrytown, 89 NY2d 714, 658 NYS2d 205 (1997); In re Metropolitan Transportation Authority, 32 AD3d 943, 823 NYS2d 88 (2nd Dept. 2006); Matter of Anthony J., 143 A.D. 668, 532 NYS2d 924 (2nd Dept. 1988).

UDCA § 202 provides, in pertinent part, "The court shall have jurisdiction of actions and proceeding ... where the amount sought to be recovered or the value of the property does not exceed $15,000.00." See: Board of Managers of the Mews at North Hills Condominium v. Farajzadeh, 189 Misc 2d 38, 730 NYS2d 180 (App. Term 2nd Dept. 2001) As noted therein, "if several causes of action are asserted in the complaint, and each of them would be within the jurisdiction of the court if sued upon separately, the District Court may render a judgment in excess of $15,000 if such excess results solely because of such joinder (UDCA 211)." In that case, brought to recover unpaid condominium common charges accrued both before the commencement of the action and thereafter, the court noted that the plaintiff could have brought two separate actions, one for the common charges due prior to the commencement of the pending action and one to recover the common charges accrued and owing thereafter. The court reasoned, however, that because each of those separate actions would be within the court's monetary jurisdictional limit, the court would not be divested of such jurisdiction if those claims were stated as causes of action within one suit. Under such circumstances, where the amount sought for each period in question did not exceed the court's monetary jurisdictional limits, the court could render a total judgment in excess of $15,000.00. Such is not the case in the matter before this court.

"While the proper test of jurisdiction ... is the amount for which judgment is demanded in the complaint," Spetler v. Jogel Realty Co., 224 A.D. 612, 231 N.Y.S. 517 (1 Dept. 1928); Lemard v. Star Auto Sales Inc., 2002 WL 1275100, (Dist.Ct. Nassau Co. 2002), "[a]n increase in the amount being sought over the course of the litigation must lead to a CPLR 325(b)^[FN1] motion." [*3]Bloom & Krup Appliance Corp. v. A.H.C. Appliance Corp., 1 Misc 3d 901(A), 781 NYS2d 622 (Dist. Ct. Nassau Co. 2003).

In the matter before this court, the only reason the ad damnum clauses in the Plaintiff's Complaint do not exceed the monetary jurisdictional limit of this court is because the Plaintiff fails to set forth the amounts sought to be recovered in its Third and Fourth Causes of Action. Moreover, unlike Board of Managers of the Mews at North Hills Condominium v. Farajzadeh, had the Plaintiff commenced two separate actions, one for the three months before the commencement of this action and one for the remaining six months for which the Plaintiff seeks to recover, the latter would not fall within this court's monetary jurisdictional limits. As the Plaintiff's motion papers now make clear, the Plaintiff is seeking $10,500.00 ($3,500.00 rent x 3 months rent) on its First Cause of Action and $21,000.00 ($3,500.00 rent x 6 months) on its Third Cause of Action. Further inflating the sums sought by the Plaintiff are the requested late fees and counsel fees which are interrelated with the single lease here in issue and the Plaintiff's breach of contract claim, and cannot be severed therefrom to be treated as separate causes of action. Board of Managers Of Sea Breeze II Condominium v. Kwiecinski, 2003 WL 22799526 (App. Term 2nd & 11th Jud. Dists. 2003); Columbia Corrugated Container Corp. v. Skyway Container Corp., 37 AD2d 845, 326 NYS2d 208 (2nd Dept.1971); 930 Fifth Corporation v. King, 42 NY2d 886, 397 NYS2d 788 (1977)

Based upon the foregoing, it is the determination of this court that the court does not have subject matter jurisdiction to consider the case. Accordingly, the Plaintiff's motion is denied and the action dismissed, without prejudice to commencement in a court of appropriate jurisdiction or for a proper amount. Bloom & Krup Appliance Corp. v. A.H.C. Appliance Corp., supra .

This constitutes the decision and order of this court.

Dated: Hempstead, New York

September 14, 2007

___________________________

Andrew M. Engel

J.D.C.