Niagara Mohawk Power Corp. v. Bloomfield Building Wreckers, Inc. , 94 Misc. 2d 748 ( 1978 )

OPINION OF THE COURT

Roger J. Miner, J.

Plaintiff seeks an order directing the removal of this action to the City Court of Albany. The action is one to recover for labor and services performed in the City of Troy, Rensselaer County, by plaintiff. The complaint includes a demand for judgment in the sum of $2,669.60.

The motion must be denied. Removal to a court of limited jurisdiction may be ordered only where it appears that the damages sustained may be less than demanded and where the lower court would have jurisdiction but for the amount demanded. (CPLR 325, subd [d]; 22 NYCRR 861.15.)

Here, the plaintiff gives no indication that the damages would be less than demanded in the complaint. Moreover, it does not appear that the Albany City Court would have personal jurisdiction over the defendant. Although plaintiff transacts business in the City of Albany, there is no allegation that defendant resides in the County of Albany or transacts any business in the City of Albany. Defendant’s principal place of business is in Rensselaer County. Under such circumstances, the requisite jurisdiction is lacking. (UCCA, § 404, subd [a]; Electronic Devices v Mark Rogers Assoc., 63 Misc 2d 243; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C325:4, p 444; Marks, Uniform City Court Practice, § 91.)