Rauch v. New York City Transit Authority , 10 A.D.2d 877 ( 1960 )

In an action to recover damages for personal injuries and for loss of services, now pending in the City Court of the City of New York, plaintiffs appeal from so much of an order of the Supreme Court, Kings County, as denied their application made pursuant to statute (Civ. Prac. Act, § 110-a) (1) to remove said action to the Supreme Court, and (2) for leave to serve an amended complaint alleging increased damages. It appears that this action originally had been commenced on January 4, 1955, in the Supreme Court and, at the request of plaintiffs’ prior trial counsel the action was subsequently transferred to the City Court by stipulation dated August 23, 1955, which reduced the damages claimed to $6,000. Order, insofar as appealed from, affirmed, with $10 costs and disbursements. In our opinion, the claim of newly discovered injuries incurred by the appellant Birdie Rauch was not substantiated, since the attending physician advised her of such injuries immediately after the accident on March 27, 1954 and a consultant orthopedic surgeon first confirmed such diagnosis on October 17, 1956. Under the circumstances, it must be concluded that appellants unreasonably delayed in making their application for removal and that appellants failed to show that the monetary jurisdiction of the forum in which they voluntarily chose to litigate their claims was inadequate for appropriate redress (cf. Matter of Goldstein v. Fass, 7 A D 2d 638). Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ., concur.