Opinion
October 14, 1971
Order, Supreme Court, New York County, entered on June 21, 1971, granting plaintiff's motion for a preference, is affirmed, without costs and without disbursements. The causes of action in the complaint arise from the alleged failure of defendants to perform in accordance with the terms of a written contract entered into between the parties. Accordingly, the preference was properly granted pursuant to rule 660.9, Supreme Court Rules, New York and Bronx Counties ( 22 NYCRR 660.9), and further it is clearly warranted in the "interests of justice" (CPLR 3403, subd. [a], par. 3).
Concur — McGivern, J.P., Nunez, Kupferman and Murphy, JJ.; McNally, J., dissents in the following memorandum: I dissent and vote to reverse. In my opinion, the plaintiff is not entitled to a trial preference where plaintiff elected to join contract and tort causes of action. ( Busher Co. v. Galbreath-Ruffin Realty Co., 16 A.D.2d 750; Sharpe v. Bates Chevrolet Corp., 155 N.Y.S.2d 979.)