Opinion
November 9, 1970
Appeal by defendants from an order of the Supreme Court, Kings County, dated July 2, 1970, which granted plaintiff a trial preference for a day certain following a pretrial hearing, upon a finding that defendants were not negotiating in good faith for settlement of the case. Order reversed, without costs and without prejudice to an application by plaintiff for a preference. The record does not prove that defendants failed to co-operate at the negotiations. Triable issues of fact were raised concerning plaintiff's contributory negligence; and defendants should not have been expected to make an offer based on absolute liability. Furthermore, a preference is not warranted within CPLR 3403, as plaintiff is not yet 75 years of age and has not alleged that he will not survive the trial or that he is about to become a public charge ( Rothschild v. Carolina Coach Co., 23 A.D.2d 729). Christ, P.J., Martuscello, Latham, Kleinfeld, and Brennan, JJ., concur.