Goldstein v. Fass ( 1958 )

Appeal from an order of the Supreme Court, Kings County, which on reargument adhered to the original determination denying appellant’s application (1) to remove to said court, pursuant to section 110-a of the Civil Practice Act, an action to recover damages for personal injuries pending in the City Court of the City of New York, Kings County, and (2) for leave to serve an amended complaint so as to allege damages of $30,000. Order affirmed, with $10 costs and disbursements. In view of the combination of the unreasonable delay on the part of appellant in making the motion, after full knowledge of the alleged extent of the injuries, and his failure to show prima facie that the $6,000 monetary jurisdiction of the City Court was clearly inadequate for full compensation for his injury, the Special Term did not improvidently exercise its discretion (cf. Matter of Hausman, 280 App. Div. 942; Helfgott v. Tannen, 208 Misc. 335). Wenzel, Acting P. J., Beldock and Ughetta, JJ., concur; Hallinan and Kleinfeld, JJ., dissent and vote to reverse the order and to grant the motion on the grounds that (1) appellant made a prima facie showing of severe injuries and substantial damages, (2) the determination of the amount of appellant’s damage is for the trier of the facts, based upon all the proof to be adduced at the trial, and (3) the respondents failed to show any substantial prejudice by the granting of this motion.