Campbell v. Kelly

¶1In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated November 17,1972, which denied his motion for a trial preference pursuant to CPLR 3403 (subd. [a], par. 4). Order reversed, with one bill of $20 costs and disbursements jointly against defendants appearing separately, and motion granted. CPLR 3403 (subd. [a], par. 4) authorizes a trial preference “ in any action upon the application of a party who has reached the age of seventy-five years.” The mother of plaintiff’s decedent is 78 years old. The decedent was her sole support and she will be the major beneficiary-of any recovery in this-action (see EPTL 4-1.1, 5-4.4). Inasmuch as she is the real party in interest, the purpose, spirit and intent of CPLR 3403 (subd. [a], par. 4) dictate that a trial preference should have been granted. Martuscello, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.