ROBERT SAMUELS INC v. CAULDWELL WINGATE CO INC (1999)

Supreme Court, Appellate Division, First Department, New York.

ROBERT B. SAMUELS, INC., Plaintiff-Appellant, v. CAULDWELL-WINGATE CO., INC., Defendant-Respondent.

Decided: June 17, 1999

SULLIVAN, J.P., NARDELLI, MAZZARELLI, RUBIN and ANDRIAS, JJ.

Lawrence Fechner, for Plantiff-Appellant. Larry F. Gainen, for Defendant-Respondent.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered April 28, 1998, which transferred the action to Civil Court pursuant to CPLR 325(d), unanimously affirmed, with costs.

The record, which was plaintiff's burden to prepare as appellant, is inadequate to permit review of plaintiff's claim that there is no reason to suppose that its damages are likely to be within Civil Court's monetary jurisdiction. Indeed, the record is completely bereft of any evidence bearing upon damages. Since no record was made of the conference at which the IAS court decided to transfer the action, we affirm (cf., E.P. Reynolds, Inc. v. Nager Elec., Co., 17 N.Y.2d 51, 56, 268 N.Y.S.2d 15, 215 N.E.2d 339). In any event, the transfer cannot prejudice plaintiff since the action was originally commenced in Supreme Court, and thus any verdict plaintiff might recover would not be subject to Civil Court's monetary jurisdiction (CPLR 325[d] ). We have considered plaintiff's remaining contentions and find them to be unavailing.

MEMORANDUM DECISION.

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