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.