Schneider v. Flowers

OPINION OF THE COURT Harold Tompkins, J. The plaintiff in this action requests a special calendar preference and an early, trial under CPLR 3403 on the grounds that he is suffering from AIDS (Acquired Immune Deficiency Syndrome) and is thereby in imminent danger of death. The court’s independent research has not discovered any officially reported cases in New York or in any other State as legal precedent to grant or decline a special trial preference when a party has AIDS. General policy mandates that cases are tried in numerical sequence, the oldest first (22 NYCRR 202.22). However, CPLR 3403 provides that under special circumstances a case should be given a preference and advanced to the head of the Trial Calendar (see also, 22 NYCRR 202.24, 202.25). These special circumstances include a party being 70 years old (CPLR 3403 [a] [4]); poverty (Sabater v New York City Tr. Auth., 102 AD2d 804 [1st Dept 1984]); and severe illness (Nold v City of Troy, 94 AD2d 930 [3d Dept 1983]). Specifically, the law provides that a party who has a severe infirmity with a probability of death [513] before a normally scheduled trial date is entitled to a special calendar preference and therefore an earlier trial date (Rago v Nationwide Ins. Co., 120 AD2d 579 [2d Dept 1986]). In this tragic situation, the plaintiff has submitted a comprehensive physician’s affidavit that establishes his being diagnosed as having AIDS more than two years ago. The medical prognosis indicates that he is "in imminent danger of death.” The attorney for the defendant has not submitted any opposing affidavit from a physician, but suggests that death is merely speculative and uncertain. Plaintiff’s medical proof satisfies this court that he is suffering from AIDS, a grave illness which substantially increases the likelihood of his death before the trial of this action unless he is given a special preference and early trial date as contemplated by the statute and case law (Rago v Nationwide Ins. Co., supra; Nold v City of Troy, supra). Since all pretrial disclosure has been completed, the case is now ready for immediate trial. This court is convinced that a party afflicted with AIDS must be entitled to the same early trial preference that any other litigant suffering from severe illness receives. The special preference is granted. Upon plaintiff’s filing a note of issue and statement of readiness, the action will be scheduled for a pretrial conference and an immediate trial date.