Bitterman v. 2007 Davidson Avenue, Inc., 278 A. D. 759, 104 N. Y. S. 2d 81. (1st Dept. 1951)

Farmelo, Neil R.

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Buffalo Law Review Volume 1 Number 2 Article 10 12-1-1951 Civil Practice—Preference in Docketing Denied Though Party Aged, Infirm, and Destitute Neil R. Farmelo Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Civil Procedure Commons Recommended Citation Neil R. Farmelo, Civil Practice—Preference in Docketing Denied Though Party Aged, Infirm, and Destitute, 1 Buff. L. Rev. 172 (1951). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol1/iss2/10 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWone injured would fall within the risk created by his conduct. Palsgraf v. LongIsland R.R. Co., 248 N. Y. 339, 162 N. E. 99 (1928); Mac Pherson v. Buick Mo-tor Co., supra at 390, 111 N. B. at 1053. Social conditions that once demandedtemporary protective judicial legislation for manufacturers no longer exist. SeeSeavey, Cardozo and the Law of Torts, 52 Harv. L Rev. 372, 379 (1939).There are no legal or social barriers that now prevent approaching the man-ufacturer liability cases from the standpoint of the general principles of negligence.It is submitted that the complaint in Campo v. Scofield stated a cause of action innegligence; a preclusion of a manufacturer's responsibility should not rest on thepatency or obviousness of the danger he creates.Sheldon HurwitzCIVIL PRACTICE-PREFERENCE IN DOCKETING DENIED THOUGH PARTYAGED, INFIRM, AND DESTITUTEPlaintiff, over 72 years of age, received injuries in an accident allegedly dueto the negligence of the Defendant and moves for preference in docketing thisaction for trial In support of this contention, the following facts are alleged.Plaintiff received a fractured femur necessitating a metal pin in the hip, but istoo old for a cast. According to physician's affidavit, Plaintiff is "totally andcompletely disabled," and according to physician's testimony under oath, Plain-tiff's injury is permanent. Further, due to the effects of the injury and Plaintiff'sage, it is extremely likely that he may not survive to trial in the regular order.The doctor bill is unpaid. Neither Plaintiff nor his wife, who is 70, has a bankaccount. There is no insurance except a $500.00 life policy to cover burialexpenses. Plaintiff's income, received as Social Security benefits, is $35.00 amonth; that of his wife, $19.00 a month. They must pay $34.00 a month rent,exclusive of gas and electricity. Only occasionally do various members of thefamily contribute to their aid. Held (3-2): 'Motion for preference properlydenied under Rule 151 of Rules of Civil Practice. Bitterman v. 2007 DavidsonAvenue, Inc., 278 A. D. 759, 104 N. Y. S. 2d 81. (1st Dept. 1951).Subsection (3) of Rule 151 states that preference may be granted in "anaction or special proceeding in which it is shown to the court or a judge thereofthat the interest of justice will be served by an early trial or hearing thereof."This section was proposed by the Judicial Council to "simplify and consolidatefor the entire State the procedure to be followed in obtaining a preference." Itwas designed to replace certain subdivisions of Section 138 of the Civil PracticeAct which were in a state of cumbersome confusion. Rule 151 was needed toalleviate the technical procedure by which preference was being granted in nearlyall cases, and to return the exercise of discretion to a consideration of the factsRECENT DECISIONSand circumstances of each case as presented. "It is intended by this provision(subsection (2) as proposed-subsection (3) as enacted)-to permit a cause tobe advanced for trial out of its regular order only if the facts of the particularcase show a necessity for such advancement, and to obviate the advancement ofcauses simply because they fall into a specified category and without regard tothe need thereof, - - -." 6 N. Y. Jud. Council 45, 267-287. From the proposalby the Judicial Council and wording of the rule by the Legislature as enacted, itappears that application of subsection (3) of Rule 151 is to be guided by a reviewof the facts of the particular case in the light of the interests of justice.There is no case in which the First Department has handed down an opinioncontaining its interpretation of subsection (3). However, other courts have con-strued and applied the rule. Destitution is a basic criterion. Whithers v. NewsSyndicate Co., 265 A. D. 868, 37 N. Y. S. 2d 780 (2nd, Dept. 1942). In Conroyv. Erie R.R. Co., 188 Misc. 59, 66 N. Y. S. 2nd 433 (Sup. Ct. 1946), Plaintiffwas 71 years old, had both legs off and subsisted on charity. In view of .the cir-cumstances, destitution created a need for preference. And where an order grant-ing preference was reversed the court said, "There is no persuasive showing ofdestitution." O'Callaghan v. Brawley, 276 A. D. 908,-94 N. Y. S. 2d 16 (2ndDept. 1950). Likelihood of death before trial can stand alone as grounds forgranting preference. Rinzler v. Manufacturers Trust Co., 190 Misc. 710, 75 N.Y. S. 2d 867 (Sup. Ct. 1947); Healy v. Healy, 193 Misc. 62, 99 N. Y. S. 2d 874(Sup. Ct. 1950). And when Plaintiff was 74 years of age and not likely to sur-vive more than one year, the court reversed an order denying a motion for pref-erence. Christenson v. Brooklyn and Queens Transit Corp., 241 A. D. 697 (2ndDept. 1944).In view "of the criterion employed by other courts in applying the same sub-section of the same rule, the purpose set out by the proposal of the Judicial Councilto the Legislature, and the wording of the rule itself, it is submitted that the hold-ing in the instant case affirms an improvident exercise of discretion. Plaintiff is72 years of age and permanently disabled. (cf. Conroy v. Erie R.R. Co., supra.)According to expert testimony, Plaintiff is not likely to survive until trial in theregular order. (cf. Christenson v. Brooklyn and Queens Transit Corp., supra.)The action for which the motion was made is for.money damages, and thereforeit would seem that the interest of justice will be served if there is sufficient im-mediate need for such recovery. After paying rent, Plaintiff and his wife have$4.60 a week, or less than $.66 a day, out of which must come gas, electricity,food and all other means of sustenance. Impoverishment, helpless physical con-dition, advanced age and likelihood of death before trial are clearly present inthe circumstances under which this motion for preference was made. It is feltthat fiction could not have provided a more exemplary situation for which sub-section (3) of Rule 151 was designed.Neil R. Farmelo

Civil Practice—Preference in Docketing Denied Though Party Aged, Infirm, and Destitute

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Civil Practice—Preference in Docketing Denied Though Party Aged, Infirm, and Destitute

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