EFCO-FA Development Corp. v. State

266 A.D.2d 338, 698 N.Y.S.2d 53, 1999 N.Y. App. Div. LEXIS 11559

Opinion

—In an eminent domain proceeding, the claimant appeals from an order of the Court of Claims (Silverman, J.), dated January 6, 1999, which denied its motion for a trial preference pursuant to CPLR 3403 (a) (3) or (4).

Ordered that the order is affirmed, with costs.

The claimant sought a trial preference on the ground that its President, who was also a 35% stockholder, was 74 years of age at the time of the application, and in poor health (see, CPLR 3403 [a] [3], [4]). Contrary to the claimant’s contention, its President, as a corporate officer and partial stockholder, does not possess a cognizable cause of action (see, Cooney Bros. v State of New York, 24 NY2d 387, 392; cf., Borenstein v City of New York, 248 AD2d 425; Milton Point Realty Co. v Haas, 91 AD2d 678; Bobowski v Toomey, 108 Misc 2d 1061) and is not the real party in interest (see, Chalmers v Eaton Corp., 71 AD2d 721; cf., Campbell v Kelly, 42 AD2d 601). Therefore, the claimant’s application for a trial preference due to the age and health of its officer was properly denied.

Furthermore, the claimant’s request for a trial preference on the ground of financial hardship was also properly denied since there was no proof submitted as to the actual fiscal condition of the corporation (see, CPLR 3403 [a] [3]; La Porta v Fretto Enters., 100 AD2d 713). Bracken, J. P., Santucci, Altman, Friedmann and H. Miller, JJ., concur.