Carnes v. Zanghi

• Decision Date: 21 November 1956
• Citation: 157 N.Y.S.2d 331,4 Misc.2d 815
• Parties: Vivian CARNES, Plaintiff, v. Carmela ZANGHI, Joseph Zanghi, Crosby Cab, Inc., and Joseph Cohen, Defendants.
• Court: New York Supreme Court

Page 331

157 N.Y.S.2d 331

4 Misc.2d 815

Vivian CARNES, Plaintiff, v. Carmela ZANGHI, Joseph Zanghi, Crosby Cab, Inc., and Joseph Cohen, Defendants.

Supreme Court, Trial Term, Bronx County, Part I.

Nov. 21, 1956.

Reich, Spitzer & Feldman, New York City (Irving Fliegler, New York City, of counsel), for plaintiff.

DiBlasi, Marasco & Simone, White Plains, for defendants, Joseph and Carmela Zanghi.

Jerome Heffer, New York City, for defendants, Joseph Cohen and Crosby Cab, Inc.

MATTHEW M. LEVY, Justice.

This is a negligence action. The accident occurred in New York County. The plaintiff was, at the time, and still is a resident of Missouri. The defendants were and are residents of Bronx County. The plaintiff applies for a preference pursuant to Rule IV, subd. 5, of the Bronx County Supreme Court Rules. This rule reads as follows, in its presently pertinent provisions 'An action to recover for personal injuries resulting in permanent or protracted disability * * * may be * * * preferred * * * provided that the plaintiffs * * * are residents of the County of Bronx * * *' (Italics mine).

The plaintiff in the present action would therefore appear to be precluded from obtaining a preference because of her out-of-state residence. The decision of Yates v. John J. Casale, Inc., Sup., 89 N.Y.S.2d 583--seemingly to the contrary of what I have just said--is not in point. That was a New York County case and was decided in 1949; and the court was not then confronted by a rule plainly requiring that the plaintiff be a resident of New York County. At the time of that decision Trial Terms Rule V, subdivision 5, of the New York County Supreme Court Rules imposed no residence requirement whatsoever--and neither did the Bronx rule. In 1950, both rules were amended to require residence of the plaintiff in the respective county. In 1953, the New York County rule was again amended--this time, to the effect that the cause may be advanced for trial:

'* * * provided that the plaintiffs * * * are residents of the State of New York and County of New York, or if not residents of the State of New York, that the defendant or one or more of the defendants is a resident of the County of New York * * *' (Italics mine).

New York County is not now alone in expressly granting preferences to out-of-state residents in actions to recover damages for serious personal injuries. (See, for example, Trial Terms Rule 9 of the Kings County Supreme Court Rules and Trial Terms Rule 9 of the Queens County Supreme Court Rules.) But the Bronx rule has remained unaltered.

In the circumstances, an argument may be presented that--in the face of the Bronx rule specifically requiring that the plaintiff be a resident of Bronx County--a preference may not be granted in the Bronx to an out-of-state resident. On the bare basis of the precise wording of the rule, the contention has merit. But I am not persuaded. Calendar congestion in negligence cases does not plague any one county in New York City. In my view, the failure to amend the Bronx rule--in line with the rules in the other metropolitan counties--was merely an oversight. And once again, where the practice in our sister counties is sound and just, I shall speak for the elimination of contrariety of technical view in the county where I am privileged to preside, see Parker v. Burgoyne, 167 Misc. 542, 5 N.Y.S.2d...