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Cruz v. Integrated Health Administrative Services, Inc.

Supreme Court, Queens County

April 21, 2017

Pedro P. Cruz, Plaintiff,
v.
Integrated Health Administrative Services, Inc.; et al., Defendants.

          For Plaintiff: Lipsig, Shapey, Manus & Moverman, P.C., by C. Michelle Clemmens, Esq.

          For Defendants: Dodge & Monroy, P.C., by Peter X. Dodge, Esq.

          Salvatore J. Modica, J.

         Papers Numbered

         Motion 1-4

         Opposition 5-6

         Reply 7-8

         The 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.

         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. 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).

         In 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.

         Based 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.

         Given 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 ...

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