
    [688 NYS2d 409]
    Eastrich No. 80 Corporation et al., Respondents, v Patrolmen’s Benevolent Association of the New York City Transit Police Department, Appellant.
    Supreme Court, Appellate Term, First Department,
    March 15, 1999
    APPEARANCES OF COUNSEL
    
      Elliot M. Rudick, New York City, for appellant. Daley & Associates, P. C., New York City (M. Teresa Daley of counsel), for respondents.
   OPINION OF THE COURT

Per Curiam.

Order dated October 17, 1996 reversed, with $10 costs, and defendant’s motion is granted to the extent of remanding the matter to the Civil Court for entry of an order transferring the action to Supreme Court, New York County.

Plaintiff originally commenced a nonpayment summary proceeding in July 1995 against defendant labor organization. Defendant surrendered possession shortly thereafter, and an order was entered in April 1996 (Dankberg, J.) converting the proceeding to a plenary action. Plaintiff then served a complaint under a new index number which, in its present incarnation, sets forth causes of action for rent in the sum of $77,887.24 for the period April through July 1995 and in the sum of $311,154.17 for the period August 1995 through October 1996. Defendant’s motion to dismiss for lack of statutory jurisdiction to hear the action or, in the alternative, to transfer the action to Supreme Court for plenary consideration, was denied by Civil Court.

It is of course true that a judgment for rent may be rendered in a summary proceeding “without regard to amount” (CCA 204), and jurisdiction is not divested merely because of the removal of the respondent subsequent to the commencement of the proceeding (Four Forty-One Holding Corp. v Bloom, 148 Misc 565). However, in this case, with the service of new pleadings for the recovery of money damages only (substantially in excess of what was originally sought in the nonpayment petition), it cannot be realistically argued that the matter retained its character as a summary proceeding. All that is before the court, in form as well as substance, is an action at law for past due rent which cannot be pursued in the plenary part of Civil Court to the extent the amount sought exceeds that court’s jurisdictional limit of $25,000 (CCA 202; S.S.I.G. Realty v Bologna Holding Corp., 213 AD2d 617, 619). Under such circumstances, the proper course was to transfer the action to Supreme Court pursuant to article VI, section 19 (f) of the NY State Constitution (Hillman v CNA Ins. Cos., 132 Misc 2d 421).

Davis, J.

(dissenting). This litigation was originally commenced as a summary nonpayment proceeding and calendared in the commercial landlord-tenant part of the Civil Court. After the tenant surrendered possession of the premises, the proceeding was deemed a plenary action and transferred to the general Civil Court calendar for resolution of the monetary claims for outstanding rent (see, CPLR 103 [c]; Cabell, Kennedy & French v Walshe, NYLJ, Apr. 29, 1986, at 6, col 2 [App Term, 1st Dept]). The majority takes no issue with this procedure, but holds that the matter cannot be pursued in the plenary part of the Civil Court to the extent that the amount sought exceeds that court’s jurisdictional limit of $25,000. In my view, however, subject matter jurisdiction vested when this matter was commenced as a summary proceeding and, therefore, the Civil Court retained jurisdiction to render judgment for rent due without regard to amount.

In a summary proceeding, the Civil Court has subject matter jurisdiction “to render judgment for rent due without regard to amount” (CCA 204). The Civil Court’s jurisdiction to adjudicate an unlimited rent claim vested when this matter was commenced as a summary proceeding. Once subject matter jurisdiction vested, it “was not divested by subsequent events, although of such character as would have prevented jurisdiction from attaching in the first instance” (Four Forty-One Holding Corp. v Bloom, 148 Misc 565, 567 [App Term, 1st Dept]). Therefore, the subsequent deeming of this matter to be a plenary action, after tenant surrendered possession, and the transfer of the matter from one Civil Court calendar to another, did not divest the Civil Court of jurisdiction to render judgment for rent due without regard to amount (see, Paumi Corp. v Khafi, NYLJ, Jan. 31, 1990, at 24, col 3).

Landlord’s service of a new pleading does not warrant a contrary result. Landlord has simply sought to amend the original claim for rent to assert a claim for rent that postdates the petition. Due consideration should be given to not placing form over substance where, as here, the Civil Court ab initio properly obtained jurisdiction over the parties and the subject matter. It is the Civil Court that is the preferred forum to conduct landlord-tenant litigation (Cox v J.D. Realty Assocs., 217 AD2d 179). Having been properly commenced as a summary proceeding in the Civil Court, this matter should be litigated to conclusion in that court. Civil Court’s denial of the motion to transfer this matter to Supreme Court should therefore be affirmed.

Parness, P. J., and Freedman, J., concur; Davis, J., dissents in a separate memorandum. 
      
       Plaintiff also sought to interpose an additional cause of action for future rent ($1,189,407.30) which would have accrued through the lease termination date in November 2001, but this relief was denied below.
     