Marquardt v. McLean

23 Misc. 2d 998, 203 N.Y.S.2d 931, 1960 N.Y. Misc. LEXIS 2740

Opinion

Mario Pittoni, J.

The plaintiff’s motion for a preference pursuant to rule 151 of the Rules of Civil Practice is granted.

The defendants’ objection that the plaintiff did not seek a preference at the opening or during the term for which the case has been noticed, would if sustained, frustrate the interests of justice in this case. Therefore, in the exercise of my discretion, I am ruling against this contention. (Hanley v. Byrne Bros., 155 N. Y. S. 2d 607, 609, affd. 2 A D 2d 873 [2d Dept.].)

The objection that the preference is sought by an administratrix is without sufficient merit (Utnicki v. City of New York, 285 App. Div. 1069 [2d Dept.]). In the Utnichi case, in a similar situation, an administratrix was granted a preference on the ground of destitution.

The final objection, that there is no showing by the plaintiff of the probability of her death before the .case is reached in regular order, is also without sufficient merit. The plaintiff is now 79 years old, and according to the uncontroverted opinion of her doctor, in his supporting affidavit, she has been suffering from a weakened heart condition complicated by her advanced years, and it is unlikely that the plaintiff will live until this case reaches trial in regular order. Preference is therefore warranted (Migliorisi v. R. K. O.-Keith-Orpheum Theatres, Inc., 1 A D 2d 836 [2d Dept.]).