## Facts

- Esther Offner was injured when she fell on a Brooklyn sidewalk.
- Offner’s injuries were not permanent; her medical and related expenses were about $250, and she did not lose income because of the fall.
- Offner sued Margot Rothschild (an abutting property owner) in New York Supreme Court, Kings County, seeking $100,000 in damages.
- Based on the small amount realistically recoverable (less than the Civil Court’s $10,000 jurisdictional limit), the Supreme Court asked Offner to consent to (1) reduce her damages demand to $10,000 and (2) have the case removed to the Civil Court of the City of New York under CPLR § 325(c), so it could be tried more promptly on the less-crowded Civil Court calendar.
- Offner refused to consent to removal under CPLR § 325(c).
- The court considered whether it could remove the action anyway and, at the same time, restrict Offner’s recovery to the Civil Court’s $10,000 limit, so that a plaintiff would not obtain the benefit of a faster Civil Court trial while still keeping a Supreme Court-level damages demand.

## Issues

1. When a Supreme Court action should have been brought in the Civil Court based on the amount actually recoverable, may the Supreme Court remove the case to the Civil Court over the plaintiff’s objection while limiting the plaintiff’s maximum recovery to the Civil Court’s jurisdictional amount?

## Decision

- The court ordered the action removed from Supreme Court to the Civil Court of the City of New York.
- The court directed that Offner’s recoverable damages be limited to the Civil Court’s $10,000 jurisdictional maximum, notwithstanding Offner’s refusal to consent to a CPLR § 325(c) removal.

## Legal Principles

- In deciding whether a case belongs in Civil Court, the Supreme Court may look beyond the ad damnum clause to the amount that is actually recoverable on the facts presented.
- CPLR § 325(d) authorizes the Supreme Court to remove an action to a lower court when it appears the action should have been commenced there, and the Supreme Court may set fair conditions in the removal order.
- A plaintiff should not obtain an advantage by starting a case in Supreme Court that belongs in Civil Court—particularly an advantage that combines (1) quicker trial in the Civil Court and (2) exposure to damages above the Civil Court’s monetary cap.
- Removal practice should not reward filing in an improper forum at the expense of litigants who commence actions in the correct court.

## Conclusion

Offner involved a low-value sidewalk fall claim filed in Supreme Court with a $100,000 demand. Because the amount realistically recoverable fell within Civil Court jurisdiction, the court removed the case to Civil Court and limited Offner’s recovery to $10,000, preventing plaintiffs from gaining the benefit of Civil Court speed while retaining a higher Supreme Court damages demand after transfer.


Offner v. Rothschild, 87 Misc. 2d 565, 386 N.Y.S.2d 188 (1976)