Preview
FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ROBERT MOORE,
Plaintiff, AFFIRMATION IN
IN OPPOSITION
-against-
Index No.:
518485/2017
STARRETT CITY, INC.
Defendant,
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STARRETT CITY, INC.
Third-Party Plaintiff,
-against-
R JUNIORS CONTRACTING CORP.,
Third-Party Defendant,
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RICHARD C. PREZIOSO, an attorney duly admitted to practice Law before the
Courts of the State of New York, hereby affirms under penalty of perjury, as follows:
1. I am a Partner at Eustace, Prezioso & Yapchanyk, attorneys for STARRETT
CITY, and as such, I am familiar with the within litigation based upon a review of
the file maintained by this office.
2. I make this Affirmation in Opposition to plaintiff’s motion, pursuant to CPLR
3403 (a) (3), for a special trial preference “based on plaintiff’s injuries and his
resulting indigence”.
3. The within litigation involves a motor vehicle accident between an employee of
Starrett City, Inc. (“Starrett City”) and the plaintiff Robert Moore. Plaintiff was a
working on the sidewalk performing work for his employer, the third-party
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defendant R Juniors. Starrett City brought a third-party action against R Juniors
for contractual indemnification and breach of contract for failure to procure
insurance.
I. PLAINTIFF’S MOTION FOR A SPECIAL PREFERENCE MUST BE
DENIED BECAUSE PLAINTIFF HAS FAILED TO DEMONSTRATE HIS
FINANCIAL HARSHIP AND MEDICAL DISABILITY SUFFICIENT FOR
OBTAINING A SPECIAL PREFERENCE
4. Plaintiff does not meet either of the requirements for special trial preference in the
interests of justice, as is required under CPLR 3403 (a) (3). For financial
hardship, plaintiff’s affidavit merely states he has no savings, without proof, that
he receives Medicaid, and he has applied for Supplemental Nutrition Assistance
Program (“SNAP”) benefits. For medical disability, plaintiff merely lists his
injuries and state, conclusory, that he is unable to work. It is submitted neither
meet the requirements for special trial preference “in the interests of justice”.
5. Plaintiff decided to settle his Workers’ Compensation claim for $5,300 on
February 13, 2018. A copy of Plaintiff’s Settlement Agreement with the
Workers’ Compensation Board is attached hereto as Exhibit A. Plaintiff now,
over a year after choosing to settle with Workers’ Compensation, asks this Court
to grant him special preference over all other plaintiff’s as these payments have
“ran out”.
6. Actual preference in the interests of justice should only be granted where the
circumstances are sufficiently unusual and extreme to justify the extraordinary
privilege Gonzalez v. City of NY 2008, 850 N.Y.S. 2d 868.
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7. The Court, in recognizing that the grant of a trial preference in personal injury
action is an “extraordinary privilege,” requires that the plaintiff seeking the
preference must make a “persuasive showing” of entitlement to it. Therefore, in
the absence of proper medical proof unequivocally showing the plaintiff’s
entitlement to a preference based on their physical condition or inability to work,
a preference is not warranted. Smith v. Horn Constr., 12 A.D. 2d 739 (1st Dept.
1961).
8. “Where the movant claims financial hardship, documentary proof establishing the
movant’s indigence or complete destitution is required as well as medical
evidence that the movant’s current physical condition renders it impossible to
obtain gainful employment”. McCluskey v. County of Suffolk, 9 Misc. 3d 1106
[A], 1106A, 2005 NY Slip Op 51420[U] (Sup. Ct. Suffolk Co. 2005); citing
cenname v. Lindholm, 69 A.D. 2d 848, 415 N.Y.S. 2d 631 (2nd Dept. 1979) and
Smith v. Horn Construction Co., 12 A.D. 2d 739, 208 N.Y.S.2d 1003 (1stDept.
1961)”.
9. “[A] mere showing that a plaintiff is heavily indebted and presently lacks
sufficient income to meet current living expenses will not justify the granting of
preference. A plaintiff needing only temporary relief, generally has no standing
to obtain a preference”. Alfonso Di Carpio v. Babylon Milk & Cream Co., 208
Misc. 80 at 81 (Sup. Ct. Westchester Co. 1955) (emphasis added). See also
Alfonso Di Carpio v. Babylon Milk & Cream Co, 285 A.D. 1084 (2d Dept. 1955)
(reversing trial court’s grant of motion for preference ), reh. den ,Di Carpio v.
Babylon Milk & Cream Co, 285 A.D. 1158.
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10. It is respectfully submitted that plaintiff has not demonstrated the documentary
proof of indigence or complete destitution, nor the documentary proof of medical
disability, necessary to demonstrate a “persuasive showing” that he be granted the
privilege of leap frogging over hundreds of other plaintiff’s already waiting for
trial.
11. Plaintiff fails to demonstrate the persuasive showing necessary to be granted the
privilege of moving in front of hundreds of other plaintiffs for the privilege of
special trial preference. He provides little to no documentation of his alleged
destitution, attaching documents only proving that he is on Medicaid and has
applied for SNAP benefits. If being on Medicaid, without any other documentary
proof, was sufficient for obtaining a special preference due to indigency, it would
open the flood gates to hundreds of other plaintiffs seeking the same relief.
12. As plaintiff does not supply any documentary proof of this financial hardship
other than being on Medicaid and applying for SNAP benefits, he fails to
demonstrate a “persuasive showing” of his indigency sufficient to be warranted
special trial preference under CPLR 3403(a) (3).
13. While plaintiff provides very little documentary evidence of his financial
hardship, he provides zero documentary evidence that he is disabled enough to
justify the extreme remedy of special trial preference. Plaintiff merely recites his
injuries in his affidavit, without providing any evidence to support his claim. He
states, conclusory, and without medical evidence, that has been unable to work
since the accident.
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14. Clearly, an affidavit which provides the conclusory statement that a plaintiff
cannot work, cannot be enough for special trial preference, as this would grant
that preference to a majority of plaintiffs, this is the case even if plaintiff provided
documentary proof of his disability (as most plaintiffs can also obtain), which
this plaintiff did not.
15. The IME from Orthopedic Surgeon Dr. Gallina, revealed no continuing disability.
A copy of defendant’s IME report is attached hereto as Exhibit B. Therein, Dr.
Gallina opined “has regained nearly complete range of motion with full strength
and sensation. There is no focal tenderness. There is no objective finding of
swelling in the ankle. He has symmetric calf atrophy and does not appear to be
limping on today's examination. There is neutral alignment. Radiographically, the
ankle mortise is in neutral alignment with no sign of arthritis. The fractures have
healed entirely. Treatment to date has been reasonable, necessary and appropriate.
No further orthopedic treatment is required at this time or in the future. The
claimant is able to return to work as a mason or any other form of employment
without restriction. He has made a full recovery.
16. Thus, the only documentary evidence of plaintiff’s disability, which is properly
before the Court, states that plaintiff can return to work in full capacity.
17. As plaintiff provides zero proof of his disability, which would be insufficient to
grant preference even if he had, and is countered by his IME’s, he fails to
demonstrate a “persuasive showing” of his disability sufficient to be warranted
special preference under CPLR 3403 (a) (3).
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CONCLUSION
18. Special trial preference under CPLR 3403 (a) (3) "in which the interests of justice
trial"
will be served by an early is an extreme remedy because it allows plaintiffs
to leapfrog over hundreds of other plaintiffs, who are each awaiting their day in
Court. financial or is not sufficient as
Merely declaring hardship disability
unfortüñatcly many plaintiffs can claim this condition. Thus, the commentaries
showing"
and case law show that the paintiff must make a "persuasive of
circumstances which are "sufficiently unusual and extreme to justify the
extraordiñary privilege over thousands of other plaintiff's with deenmentary proof
of not only complete destitution but also medical evidence showing it is
impossible to obtain gainful employment. Plaintiff has done neither of these
things, proving evidence merely that he is on Med imid, with no evidence that he
is unable to obtain gain±l employmcñt. Therefore, he has not demonstrated he is
justice"
entitled to special trial preference "in the interests of pursuant to CPLR
3403 (a) (3).
WHEREFORE, the within motion should be denied in its entirety.
Dated: April 11, 2019
New York, New York
Richard C. P'rezi so
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Preview
FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------X ROBERT MOORE, Plaintiff, AFFIRMATION IN IN OPPOSITION -against- Index No.: 518485/2017 STARRETT CITY, INC. Defendant, --------------------------------------------------------------------X STARRETT CITY, INC. Third-Party Plaintiff, -against- R JUNIORS CONTRACTING CORP., Third-Party Defendant, -------------------------------------------------------------------X RICHARD C. PREZIOSO, an attorney duly admitted to practice Law before the Courts of the State of New York, hereby affirms under penalty of perjury, as follows: 1. I am a Partner at Eustace, Prezioso & Yapchanyk, attorneys for STARRETT CITY, and as such, I am familiar with the within litigation based upon a review of the file maintained by this office. 2. I make this Affirmation in Opposition to plaintiff’s motion, pursuant to CPLR 3403 (a) (3), for a special trial preference “based on plaintiff’s injuries and his resulting indigence”. 3. The within litigation involves a motor vehicle accident between an employee of Starrett City, Inc. (“Starrett City”) and the plaintiff Robert Moore. Plaintiff was a working on the sidewalk performing work for his employer, the third-party 1 of 6 FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 defendant R Juniors. Starrett City brought a third-party action against R Juniors for contractual indemnification and breach of contract for failure to procure insurance. I. PLAINTIFF’S MOTION FOR A SPECIAL PREFERENCE MUST BE DENIED BECAUSE PLAINTIFF HAS FAILED TO DEMONSTRATE HIS FINANCIAL HARSHIP AND MEDICAL DISABILITY SUFFICIENT FOR OBTAINING A SPECIAL PREFERENCE 4. Plaintiff does not meet either of the requirements for special trial preference in the interests of justice, as is required under CPLR 3403 (a) (3). For financial hardship, plaintiff’s affidavit merely states he has no savings, without proof, that he receives Medicaid, and he has applied for Supplemental Nutrition Assistance Program (“SNAP”) benefits. For medical disability, plaintiff merely lists his injuries and state, conclusory, that he is unable to work. It is submitted neither meet the requirements for special trial preference “in the interests of justice”. 5. Plaintiff decided to settle his Workers’ Compensation claim for $5,300 on February 13, 2018. A copy of Plaintiff’s Settlement Agreement with the Workers’ Compensation Board is attached hereto as Exhibit A. Plaintiff now, over a year after choosing to settle with Workers’ Compensation, asks this Court to grant him special preference over all other plaintiff’s as these payments have “ran out”. 6. Actual preference in the interests of justice should only be granted where the circumstances are sufficiently unusual and extreme to justify the extraordinary privilege Gonzalez v. City of NY 2008, 850 N.Y.S. 2d 868. 2 of 6 FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 7. The Court, in recognizing that the grant of a trial preference in personal injury action is an “extraordinary privilege,” requires that the plaintiff seeking the preference must make a “persuasive showing” of entitlement to it. Therefore, in the absence of proper medical proof unequivocally showing the plaintiff’s entitlement to a preference based on their physical condition or inability to work, a preference is not warranted. Smith v. Horn Constr., 12 A.D. 2d 739 (1st Dept. 1961). 8. “Where the movant claims financial hardship, documentary proof establishing the movant’s indigence or complete destitution is required as well as medical evidence that the movant’s current physical condition renders it impossible to obtain gainful employment”. McCluskey v. County of Suffolk, 9 Misc. 3d 1106 [A], 1106A, 2005 NY Slip Op 51420[U] (Sup. Ct. Suffolk Co. 2005); citing cenname v. Lindholm, 69 A.D. 2d 848, 415 N.Y.S. 2d 631 (2nd Dept. 1979) and Smith v. Horn Construction Co., 12 A.D. 2d 739, 208 N.Y.S.2d 1003 (1stDept. 1961)”. 9. “[A] mere showing that a plaintiff is heavily indebted and presently lacks sufficient income to meet current living expenses will not justify the granting of preference. A plaintiff needing only temporary relief, generally has no standing to obtain a preference”. Alfonso Di Carpio v. Babylon Milk & Cream Co., 208 Misc. 80 at 81 (Sup. Ct. Westchester Co. 1955) (emphasis added). See also Alfonso Di Carpio v. Babylon Milk & Cream Co, 285 A.D. 1084 (2d Dept. 1955) (reversing trial court’s grant of motion for preference ), reh. den ,Di Carpio v. Babylon Milk & Cream Co, 285 A.D. 1158. 3 of 6 FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 10. It is respectfully submitted that plaintiff has not demonstrated the documentary proof of indigence or complete destitution, nor the documentary proof of medical disability, necessary to demonstrate a “persuasive showing” that he be granted the privilege of leap frogging over hundreds of other plaintiff’s already waiting for trial. 11. Plaintiff fails to demonstrate the persuasive showing necessary to be granted the privilege of moving in front of hundreds of other plaintiffs for the privilege of special trial preference. He provides little to no documentation of his alleged destitution, attaching documents only proving that he is on Medicaid and has applied for SNAP benefits. If being on Medicaid, without any other documentary proof, was sufficient for obtaining a special preference due to indigency, it would open the flood gates to hundreds of other plaintiffs seeking the same relief. 12. As plaintiff does not supply any documentary proof of this financial hardship other than being on Medicaid and applying for SNAP benefits, he fails to demonstrate a “persuasive showing” of his indigency sufficient to be warranted special trial preference under CPLR 3403(a) (3). 13. While plaintiff provides very little documentary evidence of his financial hardship, he provides zero documentary evidence that he is disabled enough to justify the extreme remedy of special trial preference. Plaintiff merely recites his injuries in his affidavit, without providing any evidence to support his claim. He states, conclusory, and without medical evidence, that has been unable to work since the accident. 4 of 6 FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 14. Clearly, an affidavit which provides the conclusory statement that a plaintiff cannot work, cannot be enough for special trial preference, as this would grant that preference to a majority of plaintiffs, this is the case even if plaintiff provided documentary proof of his disability (as most plaintiffs can also obtain), which this plaintiff did not. 15. The IME from Orthopedic Surgeon Dr. Gallina, revealed no continuing disability. A copy of defendant’s IME report is attached hereto as Exhibit B. Therein, Dr. Gallina opined “has regained nearly complete range of motion with full strength and sensation. There is no focal tenderness. There is no objective finding of swelling in the ankle. He has symmetric calf atrophy and does not appear to be limping on today's examination. There is neutral alignment. Radiographically, the ankle mortise is in neutral alignment with no sign of arthritis. The fractures have healed entirely. Treatment to date has been reasonable, necessary and appropriate. No further orthopedic treatment is required at this time or in the future. The claimant is able to return to work as a mason or any other form of employment without restriction. He has made a full recovery. 16. Thus, the only documentary evidence of plaintiff’s disability, which is properly before the Court, states that plaintiff can return to work in full capacity. 17. As plaintiff provides zero proof of his disability, which would be insufficient to grant preference even if he had, and is countered by his IME’s, he fails to demonstrate a “persuasive showing” of his disability sufficient to be warranted special preference under CPLR 3403 (a) (3). 5 of 6 FILED: KINGS COUNTY CLERK 04/11/2019 09:38 AM INDEX NO. 518485/2017 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 04/11/2019 CONCLUSION 18. Special trial preference under CPLR 3403 (a) (3) "in which the interests of justice trial" will be served by an early is an extreme remedy because it allows plaintiffs to leapfrog over hundreds of other plaintiffs, who are each awaiting their day in Court. financial or is not sufficient as Merely declaring hardship disability unfortüñatcly many plaintiffs can claim this condition. Thus, the commentaries showing" and case law show that the paintiff must make a "persuasive of circumstances which are "sufficiently unusual and extreme to justify the extraordiñary privilege over thousands of other plaintiff's with deenmentary proof of not only complete destitution but also medical evidence showing it is impossible to obtain gainful employment. Plaintiff has done neither of these things, proving evidence merely that he is on Med imid, with no evidence that he is unable to obtain gain±l employmcñt. Therefore, he has not demonstrated he is justice" entitled to special trial preference "in the interests of pursuant to CPLR 3403 (a) (3). WHEREFORE, the within motion should be denied in its entirety. Dated: April 11, 2019 New York, New York Richard C. P'rezi so 6 of 6