Majid v 30-08 Realty Corp.
Annotate this CaseDecided on August 29, 2008
Supreme Court, Bronx County
Salim Majid, Plaintiffs,
against
30-08 Realty Corp., Defendant.
13852/06
Attorney for Plaintiff: Jada West, Esq.
Attorney for Defendant: Stephen J. Molinelli, Esq.
Alexander W. Hunter, Jr., J.
The motion by plaintiff for an order granting a preference for trial pursuant to C.P.L.R. §3403(a)(3) on the ground that plaintiff is indigent, is denied.
The cause of action is for personal injuries sustained by the plaintiff when he was working for his employer, Trade Fair, at the premises located at 30-08 30th Avenue in Long Island City, New York and he fell into an unguarded elevator shaft. Plaintiff sustained fractures to both knees as a result of the accident.
Plaintiff contends that since the time of the accident, he has been unable to ambulate without the use of a cane, has remained in pain and has been unable to work. Plaintiff has undergone surgery and has been in physical therapy since the accident. In support of the motion, plaintiff submits a copy of a report dated August 24, 2006, from Thomas H. Weiss, M.D., a Worker's Compensation physician, who documented plaintiff's injuries and determined that plaintiff "...is not a candidate for any sort of work even sedentary..." (Plaintiff's Exhibit B).
Plaintiff's counsel argues that plaintiff is indigent and has been receiving Social Security disability benefits since September 2006. Plaintiff currently receives $775.00 per month. In addition, plaintiff receives Worker's Compensation in the amount of $193.29 per week. Plaintiff submits an affidavit wherein he states that his total monthly income is currently almost $1,000 less that the more than $2,400 per month he was earning before the accident. As a result, he has [*2]difficulty paying his share of the rent and has incurred credit card debt in order to cover his monthly expenses. (Majid Affidavit, Exhibit A).
Defendant opposes the motion and asserts that the Social Security Administration Notice of Award annexed to plaintiff's motion papers, indicates that 80% of plaintiff's average earnings at the time of the occurrence was $1,500.80. Defendant contends that plaintiff's total benefit package between Social Security and Worker's Compensation, is slightly in excess of $1,548.16, which is greater than 80% of his average earnings. Thus, defendant asserts that there has been less than a 20% diminution of plaintiff's net income since the accident.
Defendant further submits a copy of a payroll printout disclosed by plaintiff's employer in response to a subpoena. Said printout indicates that in the twelve (12) week period prior to plaintiff's accident, plaintiff earned slightly in excess of $1,145.82 per month. Therefore, defendant argues that plaintiff's current benefit package is actually in excess of the average monthly earnings he received prior to the accident.
Defendant also submits a report from Daniel J. Feuer, M.D., who conducted a neurological evaluation of the plaintiff and concluded that plaintiff's "...present neurological examination is remarkable for subjective sensory loss over the surgical scarring of the knees. This finding is consistent with a superficial neuropathy. This finding in and of itself does not appear to be contributing to any practical disability." (Defendant's Exhibit B).
In addition, defendant points out that the report from Dr. Weiss, submitted by the plaintiff in support of his application, attesting to plaintiff's inability to work, was from August 24, 2006, nearly two years prior to the instant application. Moreover, in his report, Dr. Weiss states, "Return to work capacity cannot be evaluated for the future at this time." (Plaintiff's Exhibit B, p. 3). Therefore, defendant retained a vocational rehabilitation expert to assess the plaintiff's ability to obtain employment at the current time. Defendant argues that plaintiff has not submitted proof of a worsening medical condition and his capacity to return to work at the present time was not evaluated by Dr. Weiss. Accordingly, defendant contends that granting a preference would constitute an improvident exercise of the court's discretion as plaintiff has not made an adequate showing of destitution and has not shown that his incapacity was not such to render him incapable of engaging in any form of employment.
In reply, plaintiff calculates defendant's monthly income from Social Security and Worker's Compensation at being $1,612.59 per month and asserts that defendant's reading of the Social Security award letter is erroneous. In addition, plaintiff refers to the deposition testimony of plaintiff wherein he testified that at the time of his accident, he was earning $560 per week, half of which was paid to him in cash and half of which was paid to him by check. Therefore, plaintiff asserts that plaintiff's monthly income was $2,426.67 per month and not $1,145.82 as revealed in the payroll printout referred to by the defendant. Moreover, plaintiff argues that he is unable to work and is permanently disabled otherwise he would never have qualified for Social Security disability benefits. [*3]
In addition, with his reply papers, plaintiff submits a report from Hal Gutstein, a neurologist, who examined the plaintiff on February 22, 2008 and concluded that as a result of plaintiff's injuries, his occupational activities are impaired and are considered permanent and plaintiff's injuries will progress over time.
Defendant's counsel submitted the report of its vocational rehabilitation expert after the motion was submitted because it was not received by defendant's counsel until after the submit date of the motion. Plaintiff's counsel was given the opportunity to respond to same and submit a report from his vocational expert.
Defendant's vocational rehabilitation expert, Joseph Pessalano, concluded that there were several jobs which plaintiff, taking into account his injuries as a result of the accident, could perform. Plaintiff's vocational rehabilitation expert, Charles A. Kincaid, PhD, determined that taking into account plaintiff's injuries and disabilities, he is not employable without re-training and he refutes the findings made by Mr. Pessalano.
In addition, in his further reply papers, plaintiff submits an affidavit stating that he recently received a reduction in his Worker's Compensation benefits from $193.29 per week to $144.97 per week and his inability to work is causing a financial strain on his family since he can no longer contribute to living expenses. Plaintiff also submitted proof to the court that he became eligible to receive Medicaid benefits.
C.P.L.R. §3403(a)(3), states, "...the following shall be entitled to a preference...an action in which the interest of justice will be served by an early trial. It has been determined that the granting of trial preference is within the court's discretion. Nold v. City of Troy, 94 AD2d 930 (3rd Dept. 1983). Moreover, it has been established that trial preference, "...is never to be lightly granted, for the granting of a preference represents a favoring of one case over the many other cases awaiting trial on a calendar heavy with accident jury cases..." (citations omitted). Dodumoff v. Lyons, 4 AD2d 626 (1st Dept. 1957).
Trial preference has been granted to a plaintiff who demonstrates that he/she is indigent and unable to work. Thompson v. City of New York, 140 AD2d 232 (1st Dept. 1988). In Thompson v. City of New York, Id., the Appellate Division reversed an order from the trial court denying plaintiff trial preference. The Appellate Division, held that trial preference should have been granted to the plaintiff who was gainfully employed until the day of her accident, she had exhausted all of her "no fault" benefits and was on welfare. In Patterson v. Anderson Ave. Associates, 242 AD2d 430 (1st Dept. 1997), the Appellate Division also reversed an order of the trial court denying plaintiff trial preference in the interests of justice where plaintiff was a single parent with four children ages four (4) to twelve (12) and was receiving approximately $1,000 per month in Social Security disability benefits.
In Sabater v. New York City Transit Authority, 102 AD2d 804 (1st Dept. 1984), the Appellate Division held that plaintiff's application for special preference should have been [*4]granted where plaintiff who had been self-employed, suffered the loss of his left leg after being struck by a subway train and five (5) months later, became destitute, was unable to work and became a recipient of public assistance. See also, Kellman v. 45 Tiemann Associates, 213 AD2d 151 (1st Dept. 1995), where the court held that it was not an abuse of the court's discretion to grant plaintiff a trial preference where plaintiff was rendered paraplegic as a result of the accident at defendant's premises and was receiving Social Security disability benefits to help meet her financial needs.
In the case at bar, notwithstanding the opposing expert affidavits attesting to plaintiff's ability or inability to seek gainful employment, this court finds that plaintiff has not sufficiently demonstrated that he is indigent to the point that he should be granted trial preference. Plaintiff is currently twenty-five (25) years old. According to his affidavit, the combination of Worker's Compensation and Social Security disability payments he receives, amounts to approximately $1,000 less than he was earning at his employment in the form of weekly cash and checks. Plaintiff does not receive public assistance or food stamps.
Moreover, plaintiff claims that he is unable to pay his share of the rent and is causing a financial strain on his family, with whom he lives, but he did not provide this court with any information as to what his monthly debts are, including his share of the rent. He did not indicate that he has any dependents, he did not indicate that he is unable to pay his medical expenses and, in fact, he submitted proof that he is eligible for Medicaid benefits.
Accordingly, this court finds that plaintiff has not adequately demonstrated that he is destitute to the point that a trial preference should be granted in the interests of justice and his motion is denied.
Movant is directed to serve a copy of this order with notice of entry upon the defendant and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.
Dated: August 29, 2008
J.S.C.
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