Cenname v. Lindholm

69 A.D.2d 848, 415 N.Y.S.2d 631, 1979 N.Y. App. Div. LEXIS 11535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 16, 1979
• Status: Published

Opinion

In Action No. 1, a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Orange County, dated December 11, 1978, which denied their motion for a special preference, without prejudice to renewal after a decision is rendered in a pending no-fault arbitration, and upon a "more detailed explanation of the extent of the movant’s present rate of assistance from the Department of Social Services as well as a statement of any other sources of income which the family is receiving.” Order reversed, without costs or disbursements, and motion for a special preference granted. A special preference should be granted in this negligence action in the interest of justice (see CPLR 3403, subd [a], par 3), since there has been a showing of indigency and an inability to work since the date of the accident (see Biengardo v Ter Bush, 54 AD2d 570; Brenton v Tiripicchio, 54 AD2d 571). Plaintiffs have submitted an affidavit from the Commissioner of the Orange County Department of Social Services, dated October 27, 1978, setting forth the benefits paid to plaintiff Douglas Cenname, Sr., in the amount of $1,506, and further stating that he is presently a recipient of public assistance. In addition, plaintiff Douglas Cerníame, Sr., submitted his own affidavit stating, inter alia, his indigency, which in and of itself established his right to a special preference. Lazer, J. P., Rabin, Gulotta and Cohalan, JJ., concur.