§ 8102.Limitation of costs where action brought in higher court.

This section is intended to encourage the bringing of small claims in the inferior courts, to relieve the congestion and expense occasioned by their prosecution in higher courts. It is based upon CPA § 1474. No change of substance is made, except that subdivision 7 has been deleted and the section has been made applicable to all counties of the state.

Although failure to bring an action in an appropriate lower court might have been treated as a discretionary consideration under § 8101, the advisory committee preferred to retain the former mandatory provisions in order that an attorney may fairly appraise his risk of losing costs in the light of a definite minimum recovery provision. While the committee has simplified and consolidated the provisions, it recommends that the subject be given further study in the light of such considerations as pending court reorganization proposals, the efficacy of this type of rule, and an analysis of the administrative needs of each of the courts concerned.

The simplification effected by this section will make a five hundred dollar minimum recovery applicable to the Supreme Court outside of New York city and a two hundred fifty dollar minimum recovery applicable to County Courts. It thus removes such former anomalies as subdivision 6 of CPA § 1474, which required a showing of availability of a lower court, although in money actions, since 1951, the more stringent provision of CPA § 1472, when construed with CPA § 1475, has been applicable to the same recoveries and required no such showing.

CPA § 1474 has been interpreted to have required only that a lower court in the county where the action was instituted be available. This section clearly indicates that availability of any local court is not required; to avoid confusion, the word “triable” has been deleted. The word was not used in the former section in the sense of any county where venue was proper but restricted to the county where venue was actually laid. Cf. § 105(o).

The minimum amounts specified are each well below the limit of jurisdiction of the lower courts to allow for normal “shrinkage” between the demand and the recovery.

CPA §§ 1471, 1472, and 1473 also contained restrictions on costs based upon a small recovery. The minimum recoveries specified in CPA § 1474, except for Schoharie county, are each far greater than those specified in CPA § 1471 through 1473. Moreover, the consequences of a failure to recover the amount specified differed. For example, CPA §§ 1471 and 1473 required limitation of costs, but not denial; CPA § 1472 was construed with CPA § 1475 to have provided for both denial of costs and liability for the defendant’s costs; and CPA § 1474 provided only for denial of costs. Moreover, there was some doubt as to whether a plaintiff affected by CPA §§ 1471 or 1473 would have been entitled to his disbursements, while a plaintiff affected by CPA § 1474 was expressly entitled to none of his disbursements, and a plaintiff affected by CPA § 1472 (and thus CPA § 1475) would not only have been entitled to none of his disbursements, but would have been liable for those of the defendant.

CPA § 1474 required a showing that jurisdiction of a lower court was available, while CPA §§ 1471, 1472 and 1473 did not. CPA § 1474 applied only to certain courts in certain counties, while CPA §§ 1471, 1472 and 1473 applied throughout the state, presumably to all courts of record. A plaintiff affected by CPA §§ 1471, 1472 and 1473 would also have been affected by CPA § 1474, if he could have brought his action in a lower court specified there, and the application of both limitations was difficult.

To a large extent CPA §§ 1471, 1472 and 1473 were originally intended to achieve the same purpose as CPA § 1474, which was added later. In view of the difficulties caused by the multiplicity of limitations in the former act, CPA §§ 1471, 1472 and 1473 have been deleted. Any purpose they serve is amply served by the provisions of this section.

In 1956, the Judicial Conference proposed expansion of the provisions of CPA § 1474. Two limitations were provided: failure to secure the larger amount resulted in denial of costs, failure to secure the smaller amount resulted also in an award of costs to the defendant. The amendment was never enacted, however. Deletion of CPA §§ 1472 and 1475 removes the former anomaly which entitled a defendant to recover his costs and disbursements against a prevailing plaintiff, solely because the plaintiff recovered less than one hundred dollars. In no other case of denial of costs to a prevailing plaintiff did the defendant automatically become entitled to costs and the penalty was especially harsh where jurisdiction of a lower court was impossible or highly impracticable.

Subd 7 of the former section, which has been deleted, provided that in an action brought in the Supreme Court in New York or Bronx county for an accounting in a representative capacity by or against an executor, trustee, administrator or guardian, or for the construction of a will, no costs should have been awarded if a proceeding could have been brought in the Surrogate’s Court of those counties. Since the court may take into consideration that the plaintiff should have proceeded in another court in determining whether to deny him costs under § 8101, subdivision 7 is unnecessary. Moreover, its mandatory provisions did not permit a court to take into account justifiable reasons for bringing the action in the Supreme Court, and compelled separate actions for two trusts, one testamentary and the other inter vivos, which have the same beneficiary, trustee and grantor.

Add, L 1962, ch 308, § 1; amd, L 1963, ch 532, § 59, eff Sept 1, 1963.