Claimant has moved for a trial preference for each of the above claims pursuant
to CPLR 3403. The following papers have been submitted for review:
1. Claim (No. 109107), verified March 22, 2004, filed March 29, 2004;
2. Verified Answer, verified April 6, 2004, filed April 8, 2004;
3. Claim (No. 109280), verified April 23, 2004, filed April 30, 2004;
4. Verified Answer, verified May 20, 2004, filed May 24, 2004;
5. Notice of Motion, dated October 15, 2004, filed October 22, 2004;
6. Affidavit of Darrow J. Holmes, sworn to October 1, 2004;
7. Affirmation in Opposition of Thomas G. Ramsay, dated October 25, 2004, filed
October 27, 2004.
On consideration the Court will deny the application, without prejudice.
Claimant has sought to recover damages (Claim No. 109107) resulting from
alleged dental negligence, harassment and retaliatory conduct between July 10,
2003 and February 26, 2004, while an inmate at Attica Correctional Facility.
Claimant has also sought to recover (Claim No. 109280) for his alleged wrongful
confinement, harassment, and denial of medical and dental treatment between
February 23 and 26, 2004. He now seeks a trial preference for his claims, based
upon alleged exceptional circumstances in his medical condition, extending to a
reported "terminal state of health." Defendant opposes the motion, based upon
both procedural and substantive considerations.
Addressing the heart of the matter, the Court is disinclined to schedule a
trial of Mr. Holmes' suits ahead of older claims filed by other inmates in the
absence of a compelling justification. While a terminal medical condition would
certainly constitute a basis for such relief, the conclusory allegations set
forth by Claimant herein do not support favoring of his trials over those of
other claimants. The Court further notes that its prisoner calendar is fairly
current, and that three to four prison trial terms will be scheduled for Attica
Correctional Facility during the year 2005.
Based upon the foregoing, it is
ORDERED, that the motion for a trial preference is denied, without prejudice to
a subsequent application supported by evidence of a terminal or other
debilitating medical condition, or other ground for an expedited trial.