Ocera v. Solomon

110 A.D.2d 628, 487 N.Y.S.2d 117, 1985 N.Y. App. Div. LEXIS 48525

Opinion

Special Term improvidently granted plaintiffs’ motion for an accelerated trial date based on the advanced age of the defendant. CPLR 3403 (a) (3) requires that the movant demonstrate by a showing of unequivocable proof that the anticipated lag in reaching trial is likely to cause unusual hardship. The plaintiffs’ speculative assertion that the defendant will not survive the trial date if the case is heard in the usual order is not supported by medical opinion or testimony. Moreover, the defendant was fully deposed at an examination before trial. The circumstances are not sufficiently unusual and extreme as to justify the granting of this extraordinary privilege (Morris Elecs, v Stereo E. Devs., 71 AD2d 1061; Rothschild v Carolina Coach Co., 23 AD2d 729; 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 3403.10). Titone, P. J., Lazer, Niehoff and Rubin, JJ., concur.