Opinion
No. 1586 Index No. 157064/13 Case No. 2022-04334
02-01-2024
Wendy White, Plaintiff-Appellant, v. Metropolitan Opera Associations, Inc., Defendant-Respondent.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), and Edelman & Edelman, P.C., New York (Howard Engle of counsel), for appellant. Katz & Rychik P.C., New York (Abe M. Rychik of counsel), for respondent.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), and Edelman & Edelman, P.C., New York (Howard Engle of counsel), for appellant.
Katz & Rychik P.C., New York (Abe M. Rychik of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Kern, Scarpulla, Rosado, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 3, 2022, which, upon renewal, denied plaintiff Wendy White's motion for a special trial preference, unanimously affirmed, without costs.
In this personal injury action, plaintiff, a renowned opera singer, was allegedly injured by a fall from an elevated platform while she was performing at the Metropolitan Opera House, a venue owned and operated by defendant Metropolitan Opera Association, Inc. (the Met).
It was a provident exercise of discretion for the court to deny plaintiff a special trial preference in the interests of justice (CPLR 3403[a][3]). The statute allows courts to analyze preference requests "in light of the unique circumstances of that case" (Patterson v Anderson Ave. Assocs., 242 A.D.2d 430, 430 [1st Dept 1997]). Here, while plaintiff's income decreased post-accident, it remained reasonably adequate (see Martinkovic v Chrysler Leasing Corp., 29 A.D.2d 636 [1st Dept 1986]); compare Roman v Sullivan Paramedicine, Inc., 101 A.D.3d 443, 443 [1st Dept 2012] [finding that a preference was warranted where disabling injury prevented plaintiff from working, she had exhausted her no-fault coverage and survived on food stamps, and lacked the resources to pay for necessary medical care]; Kellman v 45 Tiemann Assoc., 213 A.D.2d 151, 151 [1st Dept 1995], affd on other grounds 87 N.Y.2d 871 [1995] [holding that trial court properly granted a special trial preference where accident rendered plaintiff a paraplegic and she relied on Social Security disability payments to meet her financial burdens]; Srajer v Vanity Fair Mills, 159 A.D.2d 286 [1st Dept 1990]).
Further, contrary to defendant's argument, this appeal is not rendered moot by plaintiff's subsequent qualification for a special trial preference based upon age.
Lastly, we agree with the second department that CPLR 3403(a) does not automatically entitle a litigant to more than one trial preference per case (see Green v Vogel, 144 A.D.2d 66, 67 [2d Dept 1989]). Also, plaintiff's evidence in this case, would not qualify as "exceptional circumstances" so as to justify imposition of a second statutory preference or preference stacking (id. at 70; see also Stralberg v Mauer, 166 A.D.2d 522 [2d Dept 1990]).