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DODUMOFF v. LYONS
Factual and Procedural Background
This appeal arises from a personal injury action based on negligence. The plaintiff, Harry Dodumoff, sought a preference for an earlier trial under rule 151 of the Rules of Civil Practice due to his advanced age and medical condition. The Special Term denied the preference, noting that the plaintiff might expedite trial by waiving a jury. The plaintiff appealed this denial.
Legal Issues Presented
- Whether the plaintiff, based on advanced age and medical affidavits indicating imminent death, is entitled to a preference for an earlier trial under rule 151 of the Rules of Civil Practice.
- Whether waiver of a jury trial is a relevant factor in granting a preference under rule 151.
- What evidentiary standards apply when granting a preference based on age and medical condition.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kuznetz v. Neuman, 3 A.D.2d 743 | Requirement of an unreserved and unequivocal physician's affidavit showing plaintiff will not survive until trial to grant preference. | Applied as controlling authority supporting the plaintiff's entitlement to preference based on strong medical proof. |
| Gray v. F R Trucking Co., 3 A.D.2d 735 | Medical showing insufficient to warrant preference. | Distinguished from current case because plaintiff's medical affidavit here is unequivocal and uncontroverted. |
| Bitterman v. 2007 Davidson Ave., 278 App. Div. 759 | Age alone does not justify preference; medical opinion must be unequivocal. | Distinguished because the medical opinion in Bitterman was equivocal, unlike here. |
| Goldin v. Malone Dairy Co., 209 App. Div. 341 | Preference under rule 151 should not be lightly granted due to heavy court calendars. | Reinforced the principle that preferences are favors, granted only with strong justification. |
| Brown v. Upfold, 204 Misc. 416 | Consideration of economic condition and other factors in preference motions. | Referenced for the principle that economic hardship is material but not determinative. |
| Healy v. Healy, 198 Misc. 688 | General principles governing preferences under rule 151. | Supported the cautious approach to granting preferences. |
| Lee v. Lehrer, 3 A.D.2d 702 | Waiver of jury trial is not a relevant factor in granting preference under rule 151. | Applied to reject the Special Term's reliance on jury waiver as a basis to deny preference. |
| Reinholdt v. King's Farm Realty Corp., 283 App. Div. 103 | Clarification that waiver of jury does not affect preference eligibility; preference denied due to insufficient showing. | Distinguished because the record here supports preference, unlike in Reinholdt. |
| Rinzler v. Mfrs. Tr. Co., 190 Misc. 710 | Age alone insufficient for preference. | Supported the principle that age must be coupled with medical proof for preference. |
Court's Reasoning and Analysis
The court analyzed the plaintiff's entitlement to a trial preference under rule 151, focusing specifically on preferences based on age and imminent death. It emphasized that preferences are exceptional accommodations and should not be granted lightly due to heavy court calendars. The court rejected the Special Term's reliance on the possibility of an early trial by waiving a jury, citing precedent that jury waiver is irrelevant to preference eligibility.
The court found that the plaintiff, age 74, presented an unreserved and unequivocal affidavit from a physician attesting that he would likely not survive until trial. This medical evidence was uncontroverted by the defendants. The court distinguished prior cases denying preferences where the medical proof was equivocal or insufficient. It held that when a plaintiff meets the burden of unequivocal medical proof of imminent death, the defendant must provide credible medical evidence to the contrary to deny preference.
The court also noted that factors such as whether the condition was caused by the accident or the plaintiff's economic status are material but not determinative. Ultimately, the court concluded that the plaintiff met the burden for preference, and the defendants failed to rebut the medical evidence.
Holding and Implications
The order denying the motion for a preference is reversed, and the motion for preference is granted.
The decision grants the plaintiff an earlier trial preference under rule 151 based on his age and uncontroverted medical evidence indicating imminent death. The ruling directly affects the parties by prioritizing this case on the trial calendar. The court did not establish new precedent but reaffirmed existing principles governing trial preferences, emphasizing the strict evidentiary standards and discretionary nature of such preferences.
Per Curiam.
In a personal injury action, based on negligence, Special Term denied a preference under rule 151 of the Rules of Civil Practice. In doing so, the court noted that "plaintiff might have an early trial by waiving a jury". The order should be reversed and a preference granted.
Plaintiff is 74 years of age, and he has "made a strong showing, supported by an unreserved and unequivocal affidavit by a physician, that * * * he will not survive for the length of time it will take for his case to come to trial" ( Kuznetz v. Neuman, 3 A.D.2d 743). Indeed, the averments of plaintiff's physician, a physician attached to the Division of Home Care of a city hospital, are not controverted by any medical affidavits supplied by defendant. As pointed out in the Kuznetz case, the medical showing was inadequate in Gray v. F R Trucking Co. ( 3 A.D.2d 735). So too, in Bitterman v. 2007 Davidson Ave., ( 278 App. Div. 759), the medical opinion was not unequivocal but was expressed in problematic terms. The denials, therefore, of preference in those cases, do not control this one.
The applicable principles are few and simple. In the discussion that follows, it is not proposed to cover the principles applicable to all kinds of preferences available under rule 151, but only to those in which age and imminent death are the moving considerations.
Emphatically, a rule 151 preference is never to be lightly granted, for the granting of a preference represents a favoring of one case over the many other cases awaiting trial on a calendar heavy with accident jury cases. (See, e.g. Goldin v. Malone Dairy Co., 209 App. Div. 341; Brown v. Upfold, 204 Misc. 416; Healy v. Healy, 198 Misc. 688.) On the other hand, waiver of a jury is not a relevant circumstance in considering whether plaintiff is entitled to a preference ( Lee v. Lehrer, 3 A.D.2d 702, a case, it so happens, arising under rule V of the New York County Supreme Court Trial Term Rules). This is not contrary to Reinholdt v. King's Farm Realty Corp. ( 283 App. Div. 103 1), for there, in commenting that plaintiff could obtain an early trial by waiving a jury trial, it was first pointed out that the record did not support the granting of a preference.
Age alone does not warrant the granting of a preference ( Bitterman v. 2007 Davidson, 278 App. Div. 759, supra; Rinzler v. Mfrs. Tr. Co., 190 Misc. 710; Tripp, A Guide to Motion Practice [Rev. ed.], ยง 21, subd. 3, par. [b], p. 50). Coupled, however, with medical proof that plaintiff will not survive for trial there is presented another situation. Then, there must be, as pointed out in the Kuznetz case ( supra) an unreserved and unequivocal affidavit by the physician, and one might add, the opinion of the physician must be supported by credible medical facts. If the preference is to be denied, on such a showing, defendant is obligated to controvert, by his own credible medical proof, the conclusion that plaintiff will not survive.
Material, but not determinative, is the fact, if it be so, that plaintiff's condition is the result of the accident. Material, but also not determinative, is plaintiff's economic condition, e.g. destitution, debt (especially to public agencies arising out of the injuries sustained in the accident), and particularly, lack of funds to obtain medical alleviation of plaintiff's condition caused by the accident. (See Brown v. Upfold, 204 Misc. 416, supra, in which the authorities are collected in a thoughtful and studied opinion.)
In conclusion, however, it must be observed that each case should be determined on its own facts, but in accord with general guiding principles. Moreover, plaintiff has the burden of establishing the right to a preference, and nothing less than unequivocal proof will do. On the other hand, if plaintiff sustains his burden, then defendant has the duty to meet the proof, if the preference is to be denied.
The order denying the motion for a preference should be reversed, in the exercise of discretion, with $20 costs and disbursements to plaintiff-appellant, and the motion granted.
PECK, P.J., BREITEL, BOTEIN, FRANK and McNALLY, JJ., concur.
Order unanimously reversed, in the exercise of discretion, with $20 costs and disbursements to the appellant, and the motion granted.
Settle order on notice.
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