Opinion
May 26, 1983
Appeals (1) from an order of the Supreme Court at Trial Term (Cholakis, J.), entered February 14, 1983 in Rensselaer County, which granted plaintiffs' motion for a trial preference, and (2) from an order of said court, entered February 23, 1983 in Rensselaer County, which fixed May 2, 1983 as a date certain for the trial of the instant actions. The present negligence action seeks to recover damages for personal injuries suffered by plaintiff Rita Nold when she was struck by a bus on November 10, 1976. After lengthy pretrial discovery, plaintiffs, on January 19, 1983, filed a note of issue. Simultaneously, plaintiffs applied for a trial preference. This application was granted and the first of the two appeals herein was commenced. Thereafter, plaintiffs moved for an order fixing the trial date. Trial Term granted this request and the second appeal was commenced. The order granting a preference must be affirmed. Pursuant to CPLR 3403 (subd [a], par 3), a civil case is entitled to a preference when "the interests of justice will be served by an early trial". Whether the interests of justice will be served by the granting of a preference rests within the discretion of Trial Term (Siegel, N Y Prac, § 373, pp 474-477; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 3403.10, 3403.11). Upon their motion for a preference, plaintiffs demonstrated that the injuries sued upon are extremely severe and continuing, and include a psychological illness that is aggravated by the injured plaintiff's concerns with respect to this litigation. In light of the above showing, we are unable to conclude that Trial Term abused its discretion (cf. Weinstein v Levy, 18 A.D.2d 398). The second order appealed from set May 2, 1983 for commencement of the trial. Since that date has now passed, this order is academic and the appeal therefrom should be dismissed as such. Order entered February 14, 1983 affirmed, with costs. Appeal from order entered February 23, 1983 dismissed, without costs, as academic. Mahoney, P.J., Sweeney, Kane, Casey and Levine, JJ., concur.