Biengardo v. Ter Bush

54 A.D.2d 570, 387 N.Y.S.2d 133, 1976 N.Y. App. Div. LEXIS 13904

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1976
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Orange County, entered April 15, 1976, which denied their motion for a special preference, without prejudice to renewal upon submission of an additional affidavit attesting to certain facts, including the fact that plaintiff Frank Biengardo "is presently a recipient of public assistance because he is unable to obtain gainful employment due to the injuries sustained in the accident”. Order modified by deleting therefrom the phrase "due to the injuries sustained in the accident”. As so modified, order affirmed, without costs or disbursements. A special preference will be granted in a negligence action in the "interests of justice” (see CPLR 3403, subd [a], par 3), upon a showing of indigency by the plaintiff. There is no requirement that the plaintiff show a causal connection between his indigency and the injuries sustained in the accident which resulted in the action (see Matheson v Joy-Kar Taxi, 32 AD2d 544). In this case, plaintiff Frank Biengardo’s submission of a lien filed against him by the Commissioner of Social Services for Orange County, in the amount of $707.01, for injuries sustained did not, in and of itself, establish that said plaintiff is currently on the welfare rolls. The additional requirement of an affidavit in support of said plaintiff’s claimed indigency was within the sound discretion of the court (see Bren ton v Tiripicchio, 54 AD2d 571). Martuscello, Acting P. J., Latham, Margett, Rabin and Hawkins, JJ., concur.