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PAUL A. KLOC v. GEORGE R. CISSELL ET AL. (02/20/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


February 20, 1969

PAUL A. KLOC, APPELLANT,
v.
GEORGE R. CISSELL ET AL., RESPONDENTS

Appeal from order of Erie Trial Term declaring a mistrial and transferring action to Buffalo City Court.

Goldman, P. J., Gabrielli, Moule, Bastow and Henry, JJ.

Memorandum: In this action to recover damages for personal injuries the trial court directed a mistrial and made an order transferring the case to Buffalo City Court. This was done solely upon plaintiff's testimony and prior to the receipt of any medical testimony. Moreover, the court declined to read the reports of plaintiff's doctors. The action taken was based on a finding that City Court had adequate monetary jurisdiction for any amount that plaintiff might possibly recover. Minimally, the court should have explored the medical proof by either listening to the pertinent testimony or examining the reports of the physicians. Such a determination should not be made in a vacuum. We affirm, however, because a recent rule enacted by court this exercised the power vested in it by CPLR 325 (subd. [d]), which provides that upon such a removal as was had herein "the verdict or judgment shall be subject to the limitation of monetary jurisdiction of the court in which the action was originally commenced and shall be lawful to the extent of the amount demanded within such limitation." It follows that plaintiff will not be aggrieved and, if liability is established, may recover such amount as may be determined by the trier of the facts in City Court subject only to the prayer for relief in his complaint.

Disposition

Order unanimously affirmed, without costs.

19690220

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