453 F2d 151 United States Blanco v. Rko Theatres Inc Rko

453 F.2d 151

UNITED STATES ex rel. Robert BLANCO, Appellant,
RKO THEATRES INC., d/b/a RKO Greenpoint, Appellee.

No. 301, Docket 71-1812.

United States Court of Appeals,
Second Circuit.

Argued Nov. 16, 1971.
Decided Dec. 17, 1971.

Robert Blanco, Elmhurst, N. Y., for appellant.

Frank J. Amabile, Brooklyn, N. Y., for appellee.

Before MOORE, HAYS and MULLIGAN, Circuit Judges.


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On February 22, 1961 Mrs. Dorothy Blanco suffered certain injuries in a fall in one of appellee's theaters due to appellee's alleged negligence. She commenced an action for damages in New York State Supreme Court, and there moved for a general trial preference, apparently on the ground that the seriousness of her injuries warranted such a disposition of her case. The motion was denied and the case remained in its assigned position on the jury calendar. Mrs. Blanco appealed the denial of the motion, and the order was affirmed by the Appellate Division. On motion for reconsideration in the Supreme Court, the motion was again denied. Mrs. Blanco then petitioned the district court for a writ of habeas corpus, alleging that the denial of a general trial preference deprived Mrs. Blanco of the right to a jury trial, thus violating her right to due process of law under the fourteenth amendment. Basing jurisdiction on 28 U.S.C. Sec. 1331(a) (1970), petitioner requested that the district court order the New York Supreme Court to grant Mrs. Blanco a general preference. The district court dismissed for lack of jurisdiction. We affirm. Mrs. Blanco was not deprived of a jury trial. The constitutional claim is frivolous.