Renzler v. Slag Co. of America, Inc.

• Decision Date: 16 February 1961
• Citation: 27 Misc.2d 170,212 N.Y.S.2d 644
• Parties: Nicholas RENZLER, Plaintiff, v. SLAG COMPANY OF AMERICA, INC. and Vito Vamonte, Defendants.
• Court: New York Supreme Court

Page 644

212 N.Y.S.2d 644

27 Misc.2d 170

Nicholas RENZLER, Plaintiff, v. SLAG COMPANY OF AMERICA, INC. and Vito Vamonte, Defendants.

Supreme Court, Westchester County.

Feb. 16, 1961.

Cribari, Scapolito & Solinger, Mount Vernon, for plaintiff.

Clark, Gagliardi, Gallagher & Smyth, White Plains, for defendants .

JAMES D. HOPKINS, Justice.

The defendants move for an order vacating the order of this Court granting a preference at a Pre-Trial Term. The plaintiff suffered personal injuries which he claims were the result of negligence on the part of the defendants and sues to recover damages sustained as a consequence. The defendants contend that the Court was without authority to grant a preference, inasmuch as the conditions of Rule II-A of this Court were not met by the plaintiff.

In Bailey v. Smith, Sup., 212 N.Y.S.2d 641, the Court has traced the power of the Court to grant a preference under Rule II-A, and held that it must be read in the light of Rule 151 of the Rules of Civil Practice, and as a refinement of the provisions thereof in actions involving personal injuries, 'resulting in permanent or protracted disability'. That decision, however, arose from a motion made on papers on notice to the opposing party and did not consider the question of a preference granted at a Pre-Trial Term.

Rule 151 provides that an application for a preference shall be made 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'. It then continues to provide that, 'Upon sufficient cause shown why the prescribed procedure has not been followed, the court or a judge thereof, upon notice, may, nevertheless, grant a preference'. The Appellate Division, Second Department, adopted Special Rule 1, applicable to the Supreme Court in the Counties of Westchester, Orange, Dutchess, Rockland and Putnam, on February 9, 1953, and amended on January 1, 1954. Special Rule 1 provides for Pre-Trial Terms to be appointed by the Appellate Division, and in subdivisions (d) thereof permits the justice at a Pre-Trial Term, upon examination of the pleadings and bill of particulars, and after a hearing, with the consent of counsel or the parties, to make an order providing for the settlement, discontinuance or other disposition of the case.

Rule II-A confers the same power of preference on a justice presiding at a Pre-Trial Term as at Trial Term, Part I. It requires that certain conditions be met: (1) that the plaintiff is a resident of the county, or a non-resident of the state, and the venue is properly laid in the county; (2) that copies of the summons, verified complaint, verified bill of particulars and doctor's affidavit, stating the duration and description of the injuries, the plaintiff's disability, and the prognosis, be filed and examined by the court.

The order here sought to be vacated was granted at the mass Pre-Trial Term held in this Court in the month of November, 1960, upon the order of the Appellate Division, Second Department. It was made after hearing the attorney for the plaintiff and a representative of the insurance carrier for the defendants, who appeared in response to a notice sent to the attorney for the defendants. The ground upon which the order is sought to be vacated is that there was not presented at the hearing a doctor's affidavit as required by Rule II-A. At the hearing, however, there was presented a letter,...