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Frangione v. Schwarz

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1980
74 A.D.2d 596 (N.Y. App. Div. 1980)

Opinion

February 11, 1980


In a negligence action to recover damages for personal injuries, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County, dated September 28, 1979, as, upon reargument, adhered to its original determination denying plaintiffs' motion for a trial preference. Order affirmed insofar as appealed from, without costs or disbursements, and without prejudice to a renewal of the motion if plaintiffs be so advised. The plaintiffs failed to establish either the indigency or the inability to work of plaintiff Frangione on the record before Special Term. Accordingly, a trial preference in "the interests of justice" (CPLR 3403, subd [a], par 3), based upon his alleged destitution, was properly denied (see Cenname v. Lindholm, 69 A.D.2d 848; Brenton v. Tiripicchio, 54 A.D.2d 571; Biengardo v. Ter Bush, 54 A.D.2d 570). However, since it appears that plaintiff Frangione has become eligible for public assistance during the pendency of this appeal, we believe that the plaintiffs should be afforded an opportunity to renew their motion on the basis of plaintiff Frangione's present circumstances, with consideration to be given to all relevant factors. Mollen, P.J., Cohalan, O'Connor and Weinstein, JJ., concur.


Summaries of

Frangione v. Schwarz

Appellate Division of the Supreme Court of New York, Second Department
Feb 11, 1980
74 A.D.2d 596 (N.Y. App. Div. 1980)
Case details for

Frangione v. Schwarz

Case Details

Full title:JOSEPH FRANGIONE et al., Appellants, v. RAYMOND SCHWARZ, as Commissioner…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 11, 1980

Citations

74 A.D.2d 596 (N.Y. App. Div. 1980)