Vinal v. New York Central Railroad

Lawrence H. Cooke, J. Plaintiff moves ‘ ‘ for a preference in the above entitled action, pursuant to Rule 3403 of the CPLR, Subdivision (A) 3 ”, it appearing that an order has been entered directing a separate prior trial of issues raised by the affirmative defense of the Statute of Limitations in the answer and issues of estoppel or waiver raised by the reply. No note of issue has been filed. A preference will not be granted unless an action is noticed properly to be placed on the calendar (CPLR 3403; Moran v. Portchester Iron Works, 11 A D 2d 783; Friedman v. Friedman, 5 A D 2d 864; Roman v. Caputo, 278 App. Div. 327; Rea v. Horton, 241 App. Div. 742; Zimmerman v. Rahmeyer, 230 App. Div. 719; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3403.21; Wachtell, New York Practice Under the CPLR, p. 263). Furthermore, in most counties of the State, including- Albany, a motion for a preference may be made only at Trial Term, not at Special Term (Brown v. Upfold, 204 Misc. 416; Wicks v. Wolcott, 200 Misc. 621; 4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3403.22; Supplementary Practice Commentary by Professor McLaughlin under CPLR 3403 in 1965 Pocket Part of Book 7B of McKinney’s Civil Practice Law and Rules; Carmody-Forkosch, New York Practice [8th ed.], p. 710; 6 Carmody-Wait, New York Practice, p. 265). Motion denied without prejudice to renewal when action properly noticed and at a proper term. Submit order.