Frangione v. Schwarz

74 A.D.2d 596, 424 N.Y.S.2d 521, 1980 N.Y. App. Div. LEXIS 10237

Opinion

In a negligence action to recover damages for personal injuries, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County, dated September 28,1979, as, upon reargument, adhered to its original determination denying plaintiffs’ motion for a trial preference. Order affirmed insofar as appealed from, without costs or disbursements, and without prejudice to a renewal of the motion if plaintiffs be so advised. The plaintiffs failed to establish either the indigency or the inability to work of plaintiff Frangione on the record before Special Term. Accordingly, a trial preference in "the interests of justice” (CPLR 3403, subd [a], par 3), based upon his alleged destitution, was properly denied (see Cerníame v Lindholm, 69 AD2d 848; Brenton v Tiripicchio, 54 AD2d 571; Biengardo v Ter Bush, 54 AD2d 570). However, since it appears that plaintiff Frangione has become eligible for public assistance during the pendency of this appeal, we believe that the plaintiffs should be afforded an opportunity to renew their motion on the basis of plaintiff Frangione’s present circumstances, with consideration to be given to all relevant factors. Mollen, P. J., Cohalan, O’Connor and Weinstein, JJ., concur.