Addison v Hall

[*1] Addison v Hall 2005 NY Slip Op 51335(U) Decided on August 12, 2005 Supreme Court, Bronx County Renwick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 12, 2005
Supreme Court, Bronx County

Cheyanna Addison, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, CAROL ADDISON, Plaintiff,

against

Sandral Hall, AS EXECUTRIX OF THE ESTATE OF CARLISLE HALL, URY ABRAHAM LEID, C. HALL MANAGEMENT AND JACKLYN SIMMONS, Defendants.



6790/2004

Dianne T. Renwick, J.

Plaintiff Cheyanna Addison, an infant by her mother and natural guardian, Carol Addison, commenced this action seeking to recover money damages for personal injuries sustained at the premises owned by the deceased defendant. The infant plaintiff allegedly suffered lead poisoning as a result of exposure to lead paint while present in the premises known as 956 Anderson Avenue, Bronx, New York. By a Decision and Order dated June 27, 2005, this Court denied plaintiff's motion for a trial preference in the interest of justice, pursuant to CPLR §3403(3). Plaintiff now moves, pursuant to CPLR§ 2221, seeking leave to reargue this Court's prior determination denying the motion for a trial preference as untimely made.

Discussion

A court has the discretion to grant a motion to reargue upon a showing that "the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision." Loland v. City of New York, 212 AD2d 674 , 675 (2nd Dept. 1995); see also, SantaMaria v. Schwartz, 238 AD2d 569, 570 (2nd Dept. 1997); Schneider v. Solowey, 141 AD2d [*2]813 (2nd Dept. 1988); C.P.L.R. §221(d)(2). If such a showing is made, the motion must be granted. See, Loland v. City of New York, supra, 212 AD2d 674. Reargument, however, is not intended to afford an unsuccessful party successive opportunities to reargue issues previously decided, or to present arguments different from those originally asserted. See, Rubinstein v. Goldman, 225 AD2d 328, 328-329 (1st Dept. 1996); Mayer v. National Arts Club, 192 AD2d 863, 865 (3rd Dept. 1993).

In this case, plaintiff seeks to reargue on the ground that this Court overlooked that an excuse had been proffered in the original motion papers for the failure to timely move for a trial preference in the interest of justice pursuant to CPLR §3403. The CPLR expressly requires the notice of a motion for a preference to be served with the notice of trial or within 10 days by a party on whom notice of trial is served. C.P.L.R. § 3403(b). Where the application is not timely made in accordance with the prescription of the statute, an explanation of any delay is required before the discretion of the court may be exercised in favor of a preference. Meyers v New York, 7 AD2d 903 (1st Dept. 1959) (motion for a trial preference denied based upon unexplained nine-month delay) See also, Smyth v. Dow Realty, Inc. 45 Misc 2d 379 (District Court, Nassau County, 1965) (motion for a trial preference denied based upon unexplained six-month delay).

Here, a review of the record reveals that plaintiff's position is accurate. Specifically, the delay of more than 100 days after the filing of the Note of Issue in moving for a trial preference was because circumstances warranting making such a motion arose on April 15, 2005, when the Bronx Surrogate Court rendered a decision reserving assets, against which a judgment in this action can be satisfied, for a relatively short period of time, until February 15, 2006. Thus, since the exigent circumstances for a trial preference developed after the statutory period prescribed for making such motion expired, it constitutes an excuse for the delay and justifies this Court's discretion in addressing the belated motion for a trial preference. See O'Brien v. New York Cent. R., 15 AD2d 592 (3rd Dept. 1961); Clarke v. Eight Avenue R. Co., 114 Misc. 707 (NY County, 1909). Cf. Meyers v. City New York, 7 AD2d 903 (1st Dept. 1959) (denial of a preference was a proper exercise of discretion where there was an unexplained nine-month delay).

Under the circumstances, leave to reargue must be granted, and this Court now examines the merits of plaintiff's motion for a trial preference in the interest of justice. CPLR §3403 provides that a special preference may be granted in any action in which the interests of justice will be served by an early trial. See CPLR §3403 (a) (3).Whether the interests of justice will be so served in any particular case rests within the discretion of the trial court. See Nold v. City of Troy, 94 AD2d 930 (3rd Dept. 1983). Nevertheless, the granting of a special trial preference is an extraordinary remedy which amounts to favoring one case over the many others which are awaiting trial. See Rago v. Nationwide Ins. Co., 120 AD2d 579 (2nd Dept. 1986). Accordingly, it should be granted only where unusual or extraordinary hardship has been convincingly demonstrated. La Porta v. Fretto Enter., 100 AD2d 713 (3rd Dept. 1984).

This Court finds that plaintiff has convincingly demonstrated the presence of unusual and extraordinary circumstances that warrant a trial preference. As noted above, pursuant to plaintiff's application, by a Decision and Order dated April 5, 2005, the Bronx Surrogate Court prohibited the distribution of deceased defendant's assets for a relatively short period of time; it reserved all available Estate assets through February 2006, and thereafter reduced the amount of assets to be reserved to $75,000 through June 2006. A trial, however, cannot be held in this [*3]action by either February 2006 or June 2006 without the grant of a trial preference. As a result, without this Court's intervention, the Estate assets will be distributed prior to the adjudication of the infant's claims. Plaintiff's predicament, in this Court's view, present a case in which the interest of justice will be served by an early trial. Cf. Patterson v. Anderson Ave. Assocs., 242 AD2d 430 (1st Dept. 1997) (Justice would be served by an early trial due to plaintiff's injuries and financial predicament); Kellman v. 41 Tiemann Associates, 213 AD2d 151 (1st Dept. 1995) (grave injury); Hoyt v. Kazel, 265 AD2d 527 (2nd Dept. 1999) (serious injury and indigence).

Conclusion

For the foregoing reasons, it is hereby

ORDERED that this action is granted a trial preference in the interest of justice, pursuant to CPLR §3403(a)(3); it is further

ORDERED that the parties must appear for trial at STP Part on August 31, 2005, at 9:30 A.M., Room 705, 851 Grand Concourse, Bronx New York , 10451.

This constitutes the Decision and Order of the Court.

Dated: August 12, 2005 __________________________

Bronx, New York Hon. Dianne T. Renwick, J.S.C.