Stralberg v. Mauer

166 A.D.2d 522, 560 N.Y.S.2d 804, 1990 N.Y. App. Div. LEXIS 12528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1990
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Leviss, J.), dated June 1, 1989, which denied her motion to dispense with a hearing before a medical malpractice panel or, in the alternative, for a medical malpractice panel preference.

Ordered that the order is affirmed, with costs.

The record reveals that medical issues are raised in this case which warrant referral to a medical malpractice panel (see, Bleich v Bono, 91 AD2d 911; Rosa v Kulkarni, 89 AD2d 529; Matter of Colton v Riccobono, 67 NY2d 571). Since the plaintiff is entitled to a trial preference based on the medical malpractice issues raised in the action, she is not automatically entitled to another preference based on her age (see, Green v Vogel, 144 AD2d 66; CPLR 3403 [a]). Whether exceptional circumstances exist which require measures to facilitate a prompt trial such as an expedited hearing before a medical malpractice panel, is a matter left to the discretion of the trial court. Bracken, J. P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.