Feierstein v. Moser , 759 N.Y.S.2d 666 ( 2003 )

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about June 24, 2002, which, in an action by a landlord against a tenant for a declaration that the tenant violated the lease by making alterations to the premises without obtaining the landlord’s consent and necessary permits, an injunction compelling the tenant to restore the premises to their original condition, and attorneys’ fees, denied the landlord’s motion to retransfer the action from Civil Court to Supreme Court pursuant to CPLR 325 (b), unanimously modified, on the law, to retransfer the cause of action for a declaratory judgment, and otherwise affirmed, without costs.

The action should not have been transferred to Civil Court pursuant to CPLR 325 (d) since the primary relief sought, a declaratory judgment, is not within that court’s subject matter jurisdiction (see Lex 33 Assoc. v Grasso, 283 AD2d 272 [2001]). Accordingly, we retransfer that cause of action to Supreme Court pursuant to CPLR 325 (b) (see Zuckermann v Spector, 287 AD2d 402 [2001]). Neither the landlord’s failure to appeal the CPLR 325 (d) order, nor his delay in seeking a retransfer, during which, we note, the case was active, requires retention of the action in Civil Court (see id.). We decline to retransfer the causes of action for an injunction and attorneys’ fees since those causes of action are within Civil Court’s jurisdiction and have been dismissed. Concur — Andrias, J.P., Saxe, Ellerin, Lerner and Friedman, JJ.