Nam Yi Pak v Lancaster

[*1] Nam Yi Pak v Lancaster 2017 NY Slip Op 50631(U) Decided on May 11, 2017 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 11, 2017
Supreme Court, Queens County

Nam Yi Pak and KYUNGHEE KIM, Plaintiff,

against

Craig Lancaster, et al., Defendants.



710871/2015



Appearances of Counsel:

For Plaintiff: Law Offices of Andrew Park, P.C., by Andrew Park, Esq., 450 Seventh Avenue, New York, N.Y. 10123

For Defendants: Abamont & Associates, P.O. Box 9250, Garden City, N.Y. 11530 [no papers submitted on the motion]
Salvatore J. Modica, J.

This Court recently, in Cruz v. Integrated Health Administrative Services, Inc., — Misc 3d &mdash, 2017 WL 2017 WL 1900152, 2017 NY Slip Op 27152 (Sup. Ct. Queens County April 21, 2017), discussed the ramifications for making a frivolous opposition to a motion for a trial preference based on age. The motion in the case at bar discusses the flip-side situation of a motion made by plaintiff for an age preference, upon insufficient evidence.

Plaintiff Nam Yi Pak has filed the instant motion for a trial preference based on the age requirement contained in CPLR 3403(a)(4). To begin, the relevant New York State statute is crystal clear: CPLR 3403(a)(4) specifically provides that a court shall grant a trial preference to a party to an action if sufficient proof is provided that such person is 70 years of age or older.

In support of his application, the plaintiff failed to present any documentary proof, such as a passport, driver's license, or birth certificate, that he is at least 70 years of age. See, CPLR 3403(a)(4)(A party to any action who has reached the age of seventy years, shall, upon application, be entitled to a trial preference.).

In support of the preference, plaintiff, instead of presenting documentary proof of age, instead attaches a stale affidavit by him submitted to the Court previously in opposing a defense attempt to change venue. In denying a change of venue, this Court referred to the plaintiff's age.

No reason is provided for the failure to attach documentary proof. As to the affidavit of Plaintiff Nam Yi Pak, plaintiff's counsel submits an affidavit sworn to in February, 2016, even though the current motion is dated April 4, 2017. No reason is [*2]provided for attaching a stale and non-contemporaneous affidavit - - even if the Court were to take the word alone of the plaintiff as to his age, which this Court declines to do.

As to the Court's prior reference as to the plaintiff's age, plaintiff seems to think that this statement by the Court is now law of the case and cemented as gospel for all purposes. Plaintiff's counsel is sadly mistaken. In defeating an attempt for change of venue, this Court was entitled to take the plaintiff's word as to his age as stated in affidavit form. When it comes to adjudicating the entitlement to a trial preference based on age, under CPLR 3404, it is not only the plaintiff's rights are at stake; the Court must protect the interests of all litigants on the trial rolls of this Court who are patiently waiting to have his, her, or its important "day in Court." Toward that end, the CPLR requires the entitlement to an age preference to be based upon the submission of documentary proof.

The New York Rules of Court, 22 NYCRR section 202.25(c), provide:

(c) Notwithstanding the failure of any party to oppose the application, no preference shall be granted by default unless the court finds that the action is entitled to a preference.

The Practice Commentary to CPLR 3403, by Professor David D. Siegel, in C3403:9 "Applying for the Preference," furthermore, states:

The granting of a preference concerns the court and all of its other waiting litigants as well as the parties to the action in which the preference is sought. Hence the court is required to look into the facts and satisfy itself that a preference is warranted even if the opposing party does not respond to the motion for the preference.

In the interest of protecting the rolls of litigants waiting their turn patiently for their long-awaited "day in court," this Court, therefore, will not take the word of the plaintiff as to his age, even though, in another context, on an attempted motion by defendant to change venue, the Court may have referred to the same plaintiff's age.

Although the motion is made without opposition by defendants, the Court denies the motion for an age preference without prejudice to re-submission accompanied by (1) documentary evidence as to appropriate proof of age and (2) a justifiable explanation why such proof was not previously attached and furnished to the Court. See, Requa v. Apple Inc., 2013 WL 9839338 (Sup. Ct. New York County 2013) (Cynthia Kern, J.); accord, Devivo v. McGowan, 2013 WL 6919408, 2013 NY Slip Op. 33419(U) (Sup. Ct. Suffolk County 2013).

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: May 11, 2017

Jamaica, New York

Honorable Salvatore J. Modica

J.S.C.