Boyo v. New York City Transit Authority

72 Misc. 2d 165, 339 N.Y.S.2d 501, 1972 N.Y. Misc. LEXIS 1266

Opinion

John A. Monteleone, J.

This is a motion by a 75-year-old plaintiff to perpetuate her testimony pursuant to CPLB 3101 [subd. (a), par. (3)].

Defendant opposes the motion on the ground that plaintiff has failed to submit a medical affidavit showing a probability that she will not survive until the time of trial.

Effective September 1, 1970 the Legislature amended CPLR 3403 by adding paragraph 4 of subdivision (a), which grants a trial preference “ in any action upon the application of a party who has reached the age of seventy-five years.” This amendment reflects legislative consideration of the mortality tables.

In light of this amendment, it is the court’s view that CPLR 3101 should be construed so as to give effect to the age of a movant seeking relief thereunder.

Accordingly, plaintiff’s motion is granted solely by reason of her advanced age.