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John J. Cullen v. Citibank

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


December 16, 2010

JOHN J. CULLEN,
APPELLANT,
v.
CITIBANK, N.A.,
RESPONDENT.

Appeal from a judgment of the Justice Court of the Town of Eastchester, Westchester County (Domenick J. Porco, J.), entered June 18, 2009.

Cullen v. Citibank, N.A.

Appellate Term, Second Department 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2010

PRESENT: NICOLAI, P.J., MOLIA and LaCAVA, JJ

The judgment, after a non-jury trial, dismissed the action.

ORDERED that the judgment is modified by providing that the dismissal of plaintiff's cause of action seeking the return of plaintiff's expense folder or, in the alternative, its value, is without prejudice; as so modified, the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks, as one of his causes of action, the return of his expense folder, which, he alleges, is in defendant's possession, or, in the alternative, the sum of $2,750, representing the value of the folder. As a second cause of action, plaintiff seeks to recover the principal sum of $157.28 based on an alleged overpayment. Following a non-jury trial, the Justice Court dismissed both causes of action on the merits.

The cause of action involving the expense folder seeks the alternative remedies of replevin and money damages. Since the Small Claims Part of the Justice Court lacks jurisdiction to grant replevin (UJCA 1801; Benitez v Calderon, 19 Misc 3d 134[A], 2008 NY Slip Op 50703[U] [App Term, 9th & 10th Jud Dists 2008]), and since both remedies should be alternatively sought in a single action (see Harding v Gaillard, 95 Misc 377 [1916], affd 176 App Div 833 [1917]), the Justice Court should have dismissed this cause of action without prejudice.

As plaintiff's remaining cause of action merely seeks the recovery of money, i.e., the principal sum of $157.28, the Small Claims Part of the Justice Court has jurisdiction over this cause of action (UJCA 1801) and properly reached the merits thereof. Upon a review of the record, we are of the opinion that, with respect to this cause of action, the judgment provided the parties with substantial justice according to the rules and principles of substantive law (UJCA 1807; Ross v Friedman, 269 AD2d 584 [2000]).

Nicolai, P.J., and LaCava, J., concur.

Molia, J., taking no part. Decision Date: December 16, 2010

20101216

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