Karina Britez, Claimant, v. Steve Cameron, Defendant. (2024)

Claimant commenced the instant small claims action against defendant seeking $6,000.00 representing approximately half of a tax refund that was issued upon the parties' filing of a joint tax return, under a "married" status, for the 2022 tax year.

The parties were previously married and later separated, ultimately obtaining a judgment of divorce entered on May 10, 2023 in the Supreme Court, Nassau County (Index No. 800622-2021). Prior to the entry of judgment, the parties entered into a stipulation of settlement (the agreement), which was so-ordered and entered on June 23, 2022. The judgment of divorce referred to and incorporated that part of the agreement concerning the filing of tax returns, which specifically provided that "[t]he parties agree if they receive any tax refund as a result of filing jointly in 2021, then they will share same equally" — however the agreement and judgment were silent as to what would happen if the parties filed jointly in 2022.

The judgment of divorce also specifically states that the Supreme Court retains jurisdiction to enforce or modify the provisions of the agreement, concurrently with the Family Court (see also 22 NYCRR § 202.50). As the Civil Court (including the within Small Claims Court) is a court of limited jurisdiction, and the parties' judgment of divorce provides that any enforcement or modification of the agreement shall be brought as an application in Supreme Court, this Court finds it is without jurisdiction to entertain the claimant's requested relief.

Rather than dismissing this case, the Court must transfer it to the Supreme Court pursuant to Article VI, § 19 (f) of the New York State Constitution (see Kemper v Transamerica Ins. Co., 61 Misc 2d 7, 7-10 [Civ Ct, NY County 1969]; see also Bey v City of New York, 32 Misc 3d 946, 947-48 [Civ Ct, Kings County 2011]; see, e.g., Kaminsky v Connolly, 73 Misc 2d 789, 790 [App Term, 1st Dept 1972]; Abrams v Braker Mem. Home, 123 AD2d 585, 586 [1st Dept 1986]).

The judgment of divorce also provides that applications regarding the agreement shall be brought in the county wherein one of the parties resides. Here, defendant resides in New York County, and since this action was already commenced in New York County, the Court will transfer the matter to the Supreme Court, New York County (see, e.g., Burr v Crary, 225 AD3d 482 [1st Dept 2024]).

Accordingly, it is hereby ORDERED that, within 45 days, claimant shall serve a copy of this order upon the Clerk of this Court and the Clerk is directed to transfer all papers heretofore filed in the Civil Court, Small Claims Part, in this action and transfer said file to the Supreme Court, New York County, upon payment of the appropriate fees in Supreme Court;¹ and it is further

ORDERED that, within 45 days, claimant shall serve a copy of this order on the New York County, Supreme Court County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who, upon payment of the appropriate fees in the Supreme Court, shall mark their records to reflect this transfer; and it is further

ORDERED upon said transfer, the Clerk is respectfully requested to assign the matter to a Matrimonial Part; and it is further

ORDERED that claimant's failure to comply with the directives herein on or before August 9, 2024 shall result in automatic dismissal of this action without prejudice.

This constitutes the decision and order of the Court.

DATED: June 10, 2024

New York, New York

ENTER:

RENA MALIK

Judge of the Civil Court

FOOTNOTES

1.   The Court notes that it does not appear that claimant would be foreclosed from making an application in the Supreme Court, Nassau County, as an alternative, where there is already an existing index number for the matrimonial action.

Rena Malik, J.