Bernstein v. Strammiello

• Decision Date: 28 April 1952
• Citation: 202 Misc. 823
• Parties: Max Bernstein, Plaintiff,<BR>v.<BR>Dominick Strammiello et al., Defendants.
• Court: New York Supreme Court

202 Misc. 823

Max Bernstein, Plaintiff,

v.Dominick Strammiello et al., Defendants.

April 28, 1952.

Louis Woolf and George Grabow for plaintiff.

Rudser & Mulligan for Dominick Strammiello and another, defendants.

Norman Lustig for Robert Metrick Co., Inc., defendant.

HART, J.

Plaintiff, on October 31, 1950, while employed on a construction job, was struck on the head by a falling cinder block. He was rendered unconscious and was hospitalized until November 13, 1950. As a result of the accident, plaintiff sustained a severe cerebral concussion, partial loss of hearing, a post-traumatic anxiety state and post-traumatic epilepsy resulting in frequent "blackouts". He has been under constant medical care and attention of his physician who is of the opinion that plaintiff has been totally disabled since the date of his accident and that the prognosis is doubtful. Plaintiff's physician in an affidavit has detailed the repeated and frequent visits which have recurred since the time of the accident. As a therapeutic measure, plaintiff was permitted to endeavor to resume his employment as a plumber but, due to his dizziness and severe headaches, he was constrained to desist.

Plaintiff resides with his wife and two children, a girl of nineteen and a boy of fourteen. The girl is unemployed and the boy attends school. From the time of his injury on October 31, 1950, until sometime in December, 1951, the family subsisted on the $32 weekly award made to plaintiff by the Workmen's Compensation Board. The compensation has been discontinued since December, 1951. Plaintiff has no income and his funds have been exhausted. In corroboration of this, plaintiff, at the direction of the court, has submitted transcripts of his savings accounts which show that no funds remain therein. Furthermore, he has borrowed $2,000 from his sister.

Plaintiff is the owner of a three-family house in which he and his family occupy an apartment. When fully rented, the yield from the other apartments approximates the cost and maintenance of the building. The property is appraised at $7,000 and assessed at $7,200, and is subject to a mortgage of only $881.27.

Plaintiff is also the owner of a Willys station wagon purchased in 1948 for the sum of $2,000 which he used in going to and coming from work. He asserts the money for the purchase of this vehicle was borrowed from his mother-in-law and was to be repaid to her at the rate of $10 a week and that he still owes her about a thousand dollars. In corroboration of this assertion, plaintiff has submitted, at the court's direction, a letter from the bank in which his mother-in-law has funds on deposit setting forth that withdrawals of $1,300 and $550 were made on August 17, 1948, and August 23, 1948, respectively.

Prior to his accident plaintiff, according to his sworn statement earned $172 a week.

Plaintiff now moves for a preference in the trial of this action to recover damages for the personal injuries alleged to have been sustained by him by reason of the negligence of the defendants.

Counsel for defendant Robert Metrick Co., Inc., frankly states that he believes the application has merit and joins therein. Counsel for the other defendants oppose the preference stating "there is no proof presented with these motion papers to show either that plaintiff has applied for welfare relief or that he is receiving such relief."

It would appear, in view of plaintiff's ownership of a motor vehicle and his equity in the real property which might be readily mortgaged or sold, that he might not be eligible for public assistance. The court is mindful of the holdings that preferences should not be granted unless the showing of destitution is "complete," the effects of which are that the destitution be of such a character that the party is either a recipient of public assistance or "is no longer able to sustain life except as a public charge". (Knollwood Cocktail Lounge v. Esdo Bldg. Corp., 15 N. Y. S. 2d 951, 952; see, also, Goldin v. Malone Dairy Co., 209 App. Div. 341.) The court, nevertheless, finds that the facts within this case come within the purview of subdivision 3 of rule 151 of the Rules of Civil Practice and its grant of authority to the court to allow a preference where "the interests of justice will be served". (Emphasis supplied.) This rule does not by its terms limit the granting of preferences to those cases where death is imminent or "destitution is complete". If the rule-making body so intended, it could have so stated. Instead, a preference is provided for where the "interests of justice will be served".

Rule 151 of the Rules of Civil Practice was promulgated by a majority of the Justices of the Appellate Divisions in the four departments pursuant to section 83 of the Judiciary Law. The application of the rule by the constituent members of the rule-making body, however, has resulted in conflicting and inconsistent results in the various departments. The First Department apparently has denied preferences in those cases where plaintiffs were indigent prior to the occurrence which caused the injuries. (Magdalenski v. Simon, and Warner v. 8th Ave. Coach Corp., N. Y. L. J., April 13, 1951, p. 1349, col. 1; Hempel v. Eden Cab Corp., N. Y. L. J., April 12, 1950, p. 1281, col. 2; Bogossian v. Third Ave. Transit Corp., 271 App. Div. 820.) With the exception of Scott v. Atlantic Taxi Corp. (N. Y. L. J., Mar. 30, 1951, p. 1154, col. 5 [DI GIOVANNA, J.]) citing the Bogossian case, the authorities in the second department have held that where plaintiff had been on home relief prior to the accident and was still receiving public assistance, the showing of destitution was complete and a preference must be allowed. (Auchello v. Brooklyn Bus Corp., 257 App. Div. 857; Preis v. Momrow, N. Y. L. J., Jan. 24, 1950, p. 295, col. 5 [WALSH, J.].) Where the court found that the plaintiff was on home relief since the accident but that he was employable and his indigence only temporary (Brown v. Gelat, N. Y. L. J., Oct. 6, 1950, p. 729, col. 1 [WALSH, J.]), the denial of a preference was reversed as an improvident exercise of discretion (277 App. Div. 1140). In the third department, on the other hand, being a recipient of home relief does not entitle a party to a preference as a matter of right (Ploof v. Somers, 277 App. Div. 1076).

It follows as a consequence of these conflicting decisions that at least one construction of the rule is incorrect and results in effect in a rescission of the rule adopted by the majority of the Justices of the four Appellate Divisions.

Subdivision 3 of rule 151 does not by its terms limit the granting of a preference to those cases where plaintiff's destitution is "complete". In fact the word "destitution" nowhere appears in the rule. If the rule-making body intended to make destitution the criterion it could have unequivocally so provided. The conflict of opinion between the various Appellate Divisions as above demonstrated appears to indicate that such was not the intention.

A rule of Civil Practice promulgated pursuant to section 83 of the Judiciary Law has the force and effect of a statute (Boyer v. Boyer, 129 App. Div. 647; Matter of Warde, 154 N.Y. 342).

In construing a rule of practice, it would appear that the same approach should be used as that in the construction of a statute. The rule as noted does not speak of "destitution" but of "interests of justice."

Authorities tell us "A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but, so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy." (People ex rel. McClelland v. Roberts, 148 N.Y. 360, 368 quoted in the majority opinion in Matter of Di Brizzi [PROSKAUER], 303 N.Y. 206, 214.) Paraphrased, this thought appears in Lawrence Constr. Corp. v. State of New York (293 N.Y. 634, 639) as follows: "A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration."

In construing the expression "interests of justice" it should be borne in mind that this connotes the exercise of judicial discretion. An excellent dissertation on the meaning of this phrase is found in United States v. National City Lines (7 F. R. D. 393, 397 [U. S. Dist. Ct., S. D., Calif., 1947, YANKWICH, D. J.]). There the court had before it a motion for a change of venue of a criminal action wherein defendants moved pursuant to subdivision (b) of rule 21 of the Federal Criminal Rules of Procedure which reads: "...