Pedro P. Cruz, Plaintiff,
Integrated Health Administrative Services, Inc.; et al., Defendants.
Plaintiff: Lipsig, Shapey, Manus & Moverman, P.C., by C.
Michelle Clemmens, Esq.
Defendants: Dodge & Monroy, P.C., by Peter X. Dodge, Esq.
Salvatore J. Modica, J.
plaintiff has filed a motion for a trial preference based on
the age requirement contained in CPLR 3403(a)(4). In support
of his application, the plaintiff presented documentary proof
that he is 75 years old. 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.).
The defense opposes the instant motion on a ground that has
nothing to do with whether or not the plaintiff has met the
age requirement set forth in the statute. After examining
CPLR 3403 and the legal interpretation that has been given to
this statute, the Court finds that the defense response that
was filed in this case and the alleged arguments made in
support thereof may be the result of conduct that is
frivolous within the meaning of 22 NYCRR §130-1.1(c) and
that costs and sanctions may be required to be imposed.
See, 22 NYCRR §130-1.1(a). Before the Court can
make that conclusion, however, a hearing is necessary.
See, 22 NYCRR §130-1.1(d).As a result, a
hearing is ordered in accordance with this decision and
order. The plaintiff's motion for a preference pursuant
to CPLR 3403(a)(4), is, however, granted. The following
opinion constitutes the decision and order of this Court.
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. Given that the Legislature's use of the
imperative "shall, " is mandatory, not permissive,
this Court may not decide to grant or deny a trial preference
by exercising its discretion. See Mennella v
Lopez-Torres, 91 N.Y.2d 474 (1998); see also Syquia
v Board of Educ. of Harpusville Cent. School Distr., 80
N.Y.2d 531, 536 (1992).
opposing the instant motion, the defense disagrees that this
is the correct interpretation to be accorded this statute.
Specifically, the defense argument is based on a deeply
warped and thoroughly tortured analysis of a holding from the
Appellate Division, Second Department. The case in question
is Green v Vogel, which, as discussed below, could
not be clearer in its holding; it ultimately concludes,
inter alia, that, pursuant to CPLR 3403(a)(4), a
person who has reached the age of seventy years shall be
entitled to a preference in any action. See Green v
Vogel, 144 A.D.2d 66 (2nd Dept. 1989). In short, the
defendant's interpretation of this case holding surely
cannot suffice to trample the dictates of a CPLR provision
that is clear, express, and unambiguous.
on the holding in and analysis of Green v Vogel, it
is quite clear that judicial discretion is irrelevant in the
granting of a trial preference in a singular action. Judicial
discretion apparently comes into play where a party to an
action attempts to obtain a preference with respect to
multiple causes of action. See Green v Vogel, supra
144 A.D.2d at 70-71.Insofar as this case is concerned, the
plaintiff has one cause of action and has established that he
is 70 years of age or older. For this reason, he is entitled
to a trial preference as a matter of law. No further inquiry
is required. The defense, however, vehemently disagrees. To
that end, defense counsel submitted legal papers and
arguments in support of his interpretation of CPLR 3403(a)(4)
that required this Court and plaintiff's counsel to
invest an inordinate amount of time studying those
contentions. In the end, it could be concluded that it was
totally unnecessary for both this Court and plaintiff's
counsel to have spent so much time analyzing defense
counsel's answer and that precious judicial resources
have been wasted on an issue in which the Legislative intent
is clear, plain, and unambiguous.
that the law on trial preferences in connection with the age
of a litigant has an express and clear meaning, this Court is
completely perplexed by the response submitted by counsel for
the defense. As a result, that response raises some questions
that require this Court to inquire whether or not the
defendant's answer was, in any sense, legally necessary
and whether or not it constituted frivolous conduct within
the meaning of 22 NYCRR §130-1.1(a) & (c), one of
the rules of the Chief Administrator. This rule, in pertinent
part, reads as follows:
(a) The court, in its discretion, may award to any party or
attorney in any civil action or proceeding before the court,
except where prohibited by law, costs in the form of
reimbursement for actual expenses reasonably incurred and
reasonable attorney's fees, resulting from frivolous
conduct as defined in this Part. In addition to or in lieu of
awarding costs, the court, in its discretion may impose
financial sanctions upon any party or attorney in a civil
action or proceeding who ...