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Tytel v. Battery Beer Distributors, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jun 3, 1993
194 A.D.2d 330 (N.Y. App. Div. 1993)

Opinion

June 3, 1993

Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).


It is undisputed that the injured plaintiff in this negligence action is 75 years of age. In denying plaintiff a trial preference, the motion court overlooked the mandatory language of CPLR 3403 (a) (4), which provides for such a preference "in any action" upon the application of a party who has reached age 70. The 1962 decision in Brier v. Plaut ( 37 Misc.2d 476), cited as contrary authority by the motion court, no longer has any pertinence, in light of the 1970 and 1979 amendments to the above-mentioned rule which removed the preference entitlement from the exercise of judicial discretion once the threshold age of the litigant is shown (see, 4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3403.18).

Concur — Carro, J.P., Ellerin, Wallach, Ross and Rubin, JJ.


Summaries of

Tytel v. Battery Beer Distributors, Inc.

Appellate Division of the Supreme Court of New York, First Department
Jun 3, 1993
194 A.D.2d 330 (N.Y. App. Div. 1993)
Case details for

Tytel v. Battery Beer Distributors, Inc.

Case Details

Full title:PEARL TYTEL et al., Appellants, v. BATTERY BEER DISTRIBUTORS, INC., et…

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

Date published: Jun 3, 1993

Citations

194 A.D.2d 330 (N.Y. App. Div. 1993)
598 N.Y.S.2d 227