Sanford L. Pirotin, P.C., Westbury, for plaintiff.
David J. Tetlak, Westbury, for Julio C. Campos and another, defendants.
James P. Nunemaker, Jr. & Assoc., Uniondale, for Eisenhower Ortega, defendant.
OPINION OF THE COURT
KENNETH L. GARTNER, J. The instant action is for personal injuries allegedly sustained in a motor vehicle collision. The plaintiff moves for an order striking the defendants' answer pursuant to CPLR 3126 (3) for the defendants' alleged refusal to obey a prior order of this court. The first issue which must be addressed is the competence of this court—rather than the court which signed the prior order—to adjudicate this motion. This case was commenced in Supreme Court. The case was transferred to the District Court pursuant to CPLR 325 (d). CPLR 325 (d) permits the involuntary removal of actions from Supreme Court to a court of limited jurisdiction, albeit with Supreme Court's unlimited monetary jurisdiction intact, "where it appears that the amount of damages sustained may be less than demanded," and "the lower court would have had jurisdiction but for the amount of damages demanded." While the instant case was pending in Supreme Court, the parties entered into a preliminary conference stipulation and order before the Supreme Court Justice assigned. The plaintiff subsequently made a motion for sanctions based upon the defendants' alleged noncompliance with the discovery schedule contained in that order. Following the case's transfer to the District Court, the motion for sanctions came on before the District Court Judge then assigned. The parties entered into a written stipulation settling the motion, and establishing dates for the defendants' depositions, which was "so-ordered" by the assigned judge. When the time came for the "compliance conference" scheduled in the stipulation, the parties appeared and entered into yet another written stipulation, setting new dates for the defendants' depositions. A new judge having by that time been assigned, that new judge "so-ordered" the new stipulation. The plaintiffs' instant motion is premised upon the defendants' alleged disobedience of the most recent so-ordered stipulation. It is asserted, however, that pursuant to CPLR 2221 (a), this court is required to mandatorily transfer this motion to the judge who "so-ordered" that stipulation, and that this court has not the authority to hear and determine it. unless the defendant appears and submits to deposition within 45 days of the date of this order.