Hoyt v. Kazel

265 A.D.2d 527, 697 N.Y.S.2d 135, 1999 N.Y. App. Div. LEXIS 10842

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Seidell, J.), dated September 2, 1998, as denied that branch of his motion which was for a trial preference pursuant to CPLR 340 (a) (3), and (2) from an order of the same court, dated December 16, 1998, as, upon, in effect, granting reargument, adhered to its prior determination denying that branch of the plaintiff’s motion which was for a trial preference.

Ordered that the appeal from the order dated September 2, 1998, is dismissed, as that order was superseded by the order dated December 16, 1998, made upon reargument; and it is further,

Ordered that the order dated December 16, 1998, is reversed insofar as appealed from, as a matter of discretion, that branch of the plaintiff’s motion which was for a trial preference is granted, and the order dated September 2, 1998, is modified accordingly; and it is further,

Ordered that the plaintiff is awarded one bill of costs.

The plaintiff sought a trial preference on the ground of his indigency (see, CPLR 3403 [a] [3]; Cenname v Lindholm, 69 AD2d 848). It is undisputed that the plaintiff is receiving Supplemental Security Income benefits and food stamps owing to his indigency. Under the circumstances of this case, the plaintiff’s application for a trial preference should have been granted (see, Biengardo v Ter Bush, 54 AD2d 570). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.