Stralberg v. Mauer

• Decision Date: 09 October 1990
• Citation: 166 A.D.2d 522,560 N.Y.S.2d 804
• Parties: Erna STRALBERG, Appellant, v. Irving MAUER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 804

560 N.Y.S.2d 804

166 A.D.2d 522

Erna STRALBERG, Appellant, v. Irving MAUER, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

Oct. 9, 1990.

Solomon & Siris, Garden City (Stuart Siris, of counsel), for appellant.

Ivone, Devine & Jensen, Lake Success (Ann-Marie F. Hartline, of counsel), for respondents.

Before BRACKEN, J.P., and LAWRENCE, EIBER, HARWOOD and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated June 1, 1989, which denied her motion to dispense with a hearing before a medical malpractice panel or, in the alternative, for a medical malpractice panel preference.

ORDERED that the order is affirmed, with costs.

The record reveals that medical issues are raised in this case which warrant referral to a medical malpractice panel (see, Bleich v. Bono, 91 A.D.2d 911, 457 N.Y.S.2d 795; Rosa v. KulKarni, 89 A.D.2d 529, 452 N.Y.S.2d 441; Matter of Colton v. Riccobono, 67 N.Y.2d 571, 505 N.Y.S.2d 581, 496 N.E.2d 670). Since the plaintiff is entitled to a trial preference based on the medical malpractice issues raised in the action, she is not automatically entitled to another preference based on her age (see, Green v. Vogel, 144 A.D.2d 66, 537 N.Y.S.2d 180; CPLR 3403[a]. Whether exceptional circumstances exist which require measures to facilitate a prompt trial such as an expedited hearing before a medical malpractice panel, is a matter left to the discretion of the trial court.