Carman Williams, Plaintiff, v. NEW YORK EYE AND EAR INFIRMARY OF MOUNT SINAI HEALTH SYSTEM INC (2026)

The following papers, numbered 1 to- 21, were read on this application to/for Removal/Transfer

Notice of Motion/ Petition/ OSC - Affidavits — Exhibits No(s) 1-7

Answering Affidavits — Exhibits No(s) 8

Replying Affidavits No(s) 9-15

Sur-reply Affidavits No(s) 16-21

Carman Williams, who is the pro se plaintiff in an action entitled Williams v Wilkins, pending in the Civil Court, New York County, under Index No. CV-014887-24/NY (hereinafter the Civil Court action), moves pursuant to CPLR 325(b) to remove the Civil Court action to this court. The defendants in the Civil Court action, Carl Stanley Wilkins, M.D., and New York Eye and Ear Infirmary of Mount Health System, Inc., oppose the motion. The motion is denied.

Williams commenced the Civil Court action on or about August 21, 2024, seeking to recover the sum of $25,000.00 from the defendants for medical malpractice based on alleged departures from good and accepted practice, lack of informed consent, negligent hiring, training supervision, and retention of healthcare personnel, and fraudulent falsification of medical records, along with an award of punitive damages. In an order dated August 13, 2025, the Civil Court, New York County (Lugo, J.), denied the defendants' motion to dismiss the complaint (MOT SEQ 001). In an order also dated August 13, 2025, the same court granted the plaintiff's motion to compel discovery (MOT SEQ 002). In a third order dated August 13, 2025, that same court denied the plaintiff's motion to strike the defendants' answer (MOT SEQ 003). In an fourth order dated August 13, 2025, that same court denied the plaintiff's second motion to strike the defendants' answer (MOT SEQ 004). In fifth order dated August 13, 2025, the Civil Court, New York County (Li, J.), denied the plaintiff's motion for leave to reargue her prior motions (MOT SEQ 005). Between January 2, 2026 and March 17, 2026, the plaintiff filed four separate motions in the Civil Court to compel the defendants to produce items of discovery (MOT SEQ 006), for summary judgment on the complaint (MOT SEQ 007), for leave to amend her complaint (MOT SEQ 009), and for miscellaneous relief (MOT SEQ 010). On February 26, 2026, the defendant filed a motion in the Civil Court for a protective order (MOT SEQ 008). All of those motions remain pending. In an order dated March 25, 2026, the Civil Court, New York County (Krugman, J.), denied the plaintiff's motion to transfer the action to the Supreme Court (MOT SEQ 011). On April 10, 2026, the plaintiff made the instant motion to remove the action from the Civil Court to the Supreme Court (see CPLR 2211).

In the first instance, the court notes that, contrary to what the parties seem to be arguing, the jurisdictional limit of the Civil Court is $50,000.00, not $25,000.00 (see NY Constitution, Art VI, § 15[b] [as amended, Nov. 1, 2021], NYC Civ Ct Act § 202 [L 2022, ch 552, § 2, eff. Aug. 17, 2022]). Hence, the fact that the plaintiff's initial complaint in the Civil Court action demanded only $25,000.00 does not preclude her from seeking leave to amend her complaint in the Civil Court to increase the ad damnum clause so as to demand $50,000.00.

In any event, CPLR 325(b) provides that

"[w]here it appears that the court in which an action is pending does not have jurisdiction to grant the relief to which the parties are entitled, a court having such jurisdiction may remove the action to itself upon motion. A waiver of jury trial in the first court is inoperative after the removal."

The court agrees with the defendants' contention that, in support of a motion pursuant to CPLR 325(b) motion to remove an action from a court of limited jurisdiction to a court of general jurisdiction, a plaintiff is "required, inter alia, to submit a physician's affirmation (1) showing a causal connection between her condition and the [incident], and (2) specifying the claimed change in her condition, any injuries that had not been previously considered, or the extent to which the condition had worsened" (Matter of Sealy v Morris, 99 AD3d 1008, 1009 [2d Dept 2012]; see Cohen v Kim, 23 AD3d 602, 602-603 [2d Dept 2005] ["the plaintiffs failed to establish through medical evidence that the condition of (the injured plaintiff) had changed since the filing of the original summons and complaint, that he had any causally related injuries not previously considered, or the extent to which his condition had worsened"]; Joefield v New York City Tr. Auth., 11 AD3d 586, 587 [2d Dept 2004] ["the plaintiff must submit a physician's affidavit or affirmation specifying the change in his or her condition, any injuries which had not been considered previously, or the extent to which the condition has worsened"]; Savory v Romex Realty Corp., 194 AD2d 601, 602 [2d Dept 1993] [denying plaintiff's motion to remove action to Supreme Court from Civil Court because she "failed to submit a medical affidavit or affirmation specifying a change in her condition, any injuries which had not been considered previously, or the extent to which the condition had worsened"]; Dolan v Garden City Union Free School Dist., 113 AD2d 781, 785 [2d Dept 1985] ["Plaintiff must . . . submit a medical affidavit or affirmation specifying, at the very least, the change in plaintiff's condition, the injuries which had not been considered previously, or the extent to which the condition has become aggravated"]). As the Appellate Division, First Department, explained it, upon an application to remove an action from the Civil Court to the Supreme Court,

"an affidavit of merits is necessary (Koi v P. S. & M. Catering Corp., 15 AD2d 775; Ferrari v Paramount Plumbing & Heating Co., 20 AD2d 878). The motion should also be supported by a physician's affidavit pertaining to a recent physical examination of the plaintiff, specifying the change or deterioration of plaintiff's condition, the injuries which had not been considered previously or the extent to which plaintiff's condition has been aggravated and containing an opinion as to their prospective consequences and prognosis, the resulting disability in terms of permanency and the causal relationship with the original injury and accident"

(Brennan v City of New York, 99 AD2d 445, 445-446 [1st Dept 1984]).

Inasmuch as the plaintiff did not support this motion with the necessary physician's affirmation or affidavit, her motion must be denied. The court rejects the plaintiff's contention that case law that denying a plaintiff's CPLR 325(b) motion because his or her physician's affirmation was insufficient somehow excuses her from submitting a physician's affirmation in the first instance. Inasmuch as all of the relevant case law requires the submission of such an affirmation, it would be absurd to conclude that, although an insufficient affirmation requires denial of the motion, the absence of any such affirmation whatsoever would not.

The court further concludes that, contrary to the defendants' contentions, the plaintiff did, in fact, include, in both her moving and reply affirmations, the prefatory language required by CPLR 2106 [Part I]). Nonetheless, the plaintiff's purported failure to include statutorily required language in her moving affirmation and her reply affirmation does not require a different result. In the first instance, her failure to include a physician's affirmation or affidavit is fatal to her motion regardless of the prefatory language set forth her affirmations. In any event, any failure to include the language required by CPLR 2106 [Part I] in her affirmations can be rectified by the submission of affirmations containing the same content, but including the required language (see Kallo v Kane St. Synagogue, 241 AD3d 522, 523-524 [2d Dept 2025]; Bruning v Pharney Group LLC, 87 Misc 3d 1208[A], 2025 NY Slip Op 51502[U], *6-7, 2025 NY Misc LEXIS 7546, *17-18 [Sup Ct, Westchester County, Sep. 24, 2025]).

The language set forth in the second paragraph of CPLR 2106 [Part I] (L 2023, ch 559, eff. Jan. 1, 2024) provides that the statement required to be included in an affirmation by "any person wherever made" who elects to employ an affirmation in lieu of an affidavit must be in "substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law."

This language is mandatory (see Matter of Sweet v Fonvil, 227 AD3d 849, 851 [2d Dept 2024]; Lasano v Alternative Funding Group Corp. v Dancie Enters., Inc., 2025 NY Slip Op 51363[U], *2-3, 2025 NY Misc LEXIS 7034, *6 [Sup Ct, Kings County, Aug. 19, 2025]). In both her moving and reply affirmations, the plaintiff prefaced the content thereof with the following language:

"Carman Williams, plaintiff pro se, hereby affirms the following under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in a proceeding in a court of law"

This language is identical to the statutory language. It is thus puzzling as to why the defendants have challenged the propriety of the language employed by the plaintiff in her affirmations. Hence, the propriety of the form and the contents of the preface to the plaintiff's affirmation is not a basis on which to deny her motion. Rather, her failure to include a physician's affirmation or affidavit with her submissions forms the basis for the denial here.

The plaintiff's remaining contentions are without merit.

Accordingly, it is,

ORDERED that the motion is denied.

This constitutes the Decision and Order of the court.

DATE 6/5/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.