Bailey v. Smith

• Decision Date: 16 February 1961
• Citation: 27 Misc.2d 168,212 N.Y.S.2d 641
• Parties: Gladys BAILEY, Plaintiff, v. Carmen SMITH, Paul Roy Smith, Sr. and Hazel Terwilliger-Scherer, Defendants.
• Court: New York Supreme Court

Page 641

212 N.Y.S.2d 641

27 Misc.2d 168

Gladys BAILEY, Plaintiff, v. Carmen SMITH, Paul Roy Smith, Sr. and Hazel

Terwilliger-Scherer, Defendants.

Supreme Court, Westchester County.

Feb. 16, 1961.

Leon Wasserman, New York City, for plaintiff.

Howard Schrecke, White Plains, for defendants.

JAMES D. HOPKINS, Justice.

The plaintiff in an action to recover for personal injuries moves for a preference pursuant to Rule II-A of this Court. The motion is made simultaneously with the filing of a note of issue for the February, 1961 term. An affidavit of the attending physician indicates that the accident in which the injuries were sustained occurred on July 3, 1960; that the plaintiff was hospitalized from July 3rd to July 9, 1960, then transferred to her home at Mount Vernon, New York, and again hospitalized from July 11th to July 18, 1960; and that the plaintiff suffered a cerebral concussion, multiple contusions, and fractures of the second and fourth ribs. The physician's affidavit further states that no permanent sequelae are anticipated from the contusions and fractures, but that it is anticipated that the plaintiff will suffer post concussion residuals, as well as continued pain, tenderness and swelling of the right foot. The plaintiff's bill of particulars alleges that she was incapacitated from employment from July 3, 1960 to September 6, 1960 and was confined to bed for one week beyond the periods of hospitalization indicated.

The question presented is the extent of the power of the Court to grant a preference under the facts stated. Although there are expressions in opinions of courts in other departments that the trial judge has inherent authority to prefer an action (Continental Rubber Works v. Tri-Continental Corp., 206 App.Div. 643, 644, 198 N.Y.S. 753, 754; Carnes v. Zanghi, 4 Misc.2d 815, 157 N.Y.S.2d 331; Cook v. Howard, 208 Misc. 358, 141 N.Y.S.2d 357; cf. Williams v. Edward DeV. Tompkins, Inc., 209 App.Div. 546, 205 N.Y.S. 124), a recent decision of the Appellate Division, Second Department, appears to negate such authority apart from statute or rule (Hedges v. Warwick-Greenwood Lake & New York Stages, Inc., 12 A.D.2d 640, 208 N.Y.S.2d 481). There the Court said that in the Supreme Court, Orange County, a preference in trial may be obtained only on a formal motion based on affidavits, on notice to the opposing party.

The source of power to grant a preference is derived from both statute and rule. The justices of the appellate divisions of the several departments are authorized to adopt rules regulating preferences in civil actions, (Sec. 140, Civil Practice Act; see also Secs. 85, 86, Judiciary Law), although the justices of the Supreme Court in the Eighth Judicial District may make rules governing the calendar in Erie County, (Sec. 152, Judiciary Law). Pursuant to that authority, the justices of the appellate divisions have adopted Rule 151 of the Rules of Civil Practice.

Rule 151 provides that civil causes shall be tried in order of the notes of issue, except as may otherwise be provided by rule of any appellate division. Subdivision 3 thereof further provides that a preference shall be obtained by applying at the opening or during the term for which the cause has been noticed, upon notice served with a copy of the note of issue, unless otherwise prescribed by rule applicable to the particular court. Some latitude is conferred on the court under Rule 151, for it continues to state that, 'Upon sufficient cause shown...