Harvin v. Chiusano

52 Misc. 2d 836, 276 N.Y.S.2d 701, 1967 N.Y. Misc. LEXIS 1866

• Court: New York Supreme Court
• Decided: January 12, 1967
• Status: Published

Opinion

Miles F. McDonald, J.

This is an action to recover damages for a personal injury sustained by the infant plaintiff and for loss of services and medical expenses by the mother and natural guardian of said infant. The present application is for an order granting the action a general preference and a special preference pursuant to CPLR 3403 on the ground that the plaintiffs are currently receiving assistance from the Department of Welfare of the City of New York and are public charges. It is the established rule that where a person is on relief and, therefore, a public charge, such person is entitled to a preference in the trial of a tort action on the grounds of destitution. The reason for this rule is that public interest requires welfare recipients to be removed from relief rolls as soon as reasonably possible. However, where, as here, the main cause of action is brought on behalf of an infant, a recovery on behalf of the infant would not be available for the support of the infant or the infant’s family. The net proceeds of the action would be deposited in a bank and the account would be under the supervision of the court. Such funds would remain in the bank until the infant reached his majority and no moneys could be withdrawn therefrom during infancy, unless permitted by court order. A recovery in this action would not remove the mother from the relief rolls (Nazario v. Martha Cab Corp., 41 Misc 2d 1010; Emery v. Lewis, N. Y. L. J., Nov. 19, 1959, p. 13, col. 8 [Sup. Ct., Kings County, Brown, J.]). Accordingly, the application for a special preference pursuant to CPLR 3403 is denied. However, in view of the nature of the injuries received by the infant plaintiff, a general preference is granted.