Opinion
December 7, 1961
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of a Trial Term, Supreme Court, Albany County. The papers on plaintiff's motion for a preference, showing grave physical injuries and financial need, are, on their face, sufficient to form a basis for granting the application. We are, however, concerned with the fact that the case has been unduly delayed in prosecution by the plaintiff himself; and that had it been promptly instituted and prosecuted, it could have been tried long ago. This delay is attributable both to the attorneys who previously represented plaintiff and to the present attorneys who instituted this action. The accident occurred October 7, 1955, now six years ago; but no action was instituted until September 4, 1958, when the present attorneys were retained by plaintiff. Although the plaintiff's brief states that after his present attorneys were retained "action was immediately commenced" it was not until over two years later, November 22, 1960 that a note of issue was filed. Failure of defendant to produce documents on an examination before trial, which is given in the plaintiff's brief as a ground for failure to serve a note of issue does not seem a sufficient ground for failure to prosecute. Plaintiff had an appropriate remedy by application to the court in such a situation and could have pursued it. In view of plaintiff's injuries the note of issue should have been filed at least within six months after the institution of the action and the action promptly brought to trial. Even in these circumstances, however, we feel that the physical condition and financial circumstances would, on the merits, warrant a preference and we decline to interfere with the discretion of the Trial Term in granting one. Order unanimously affirmed, with $10 costs.