New York State Court of Claims

New York State Court of Claims

SWERDLOFF v. THE STATE OF NEW YORK, #2008-040-008, Claim No. 109896, Motion No. M-74342


CPLR 3403 request for trial preference based on Claimant’s age denied on basis Court gave Claimant a preference at time case was scheduled for trial.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
LESTER R. HILL, P.C.By: Lester R. Hill, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: Ellen Hopkins, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 20, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


For the reasons set forth below, Claimant’s motions for a trial preference and for transfer of the matter to another judge are denied.

This Claim, which was filed with the Clerk of the Court on September 27, 2004, asserts that, on or about November 1, 2003, Claimant sought treatment for “severe weakness and leg pain” at Stony Brook University Hospital (Claim, ¶ 8). The Claim alleges that, while in the hospital’s Emergency Room, Claimant fell from his bed, causing injuries to his leg, hip and wrist. It is further alleged that the medical care, diagnosis and treatment rendered to Claimant were negligent and not in accordance with accepted standards of care. Claimant also asserts that the State was negligent in the hiring and supervision of medical personnel.

The parties concluded discovery and Claimant filed a Note of Issue and Certificate of Readiness on September 27, 2007. A copy of the document was received by the Attorney General on September 24, 2007 (see Ex. B attached to Affirmation of Assistant Attorney General Ellen Hopkins).

By letter dated September 26, 2007, received by the Court on October 3, 2007, Claimant’s counsel advised the Court that he had filed a Note of Issue and Certificate of Readiness and that he was requesting a trial preference because his client is 86 years of age.

By letter to Claimant’s counsel, dated October 1, 2007, the Court acknowledged receipt of the Note of Issue and forwarded a Trial Form for counsel to complete. That form seeks information on the estimated length of trial on the issues of liability and damages, as well as if an interpreter and/or a mechanical device, such as an aide for the hearing impaired, is required, and if medical testimony is needed for the liability phase of the trial.

Claimant’s counsel completed the Trial Form and it was received by the Court on October 10, 2007. By letter dated October 11, 2007, the Court informed the parties that the liability phase of the trial had been scheduled to commence on Tuesday, April 22, 2008 at 10:00 a.m. (Ex. A attached to Hopkins Affirmation).

In his affirmation submitted in support of the motion, received by the Court on December 18, 2007, Claimant’s counsel asserts that Claimant is 86 years of age and is entitled to a preferential trial date pursuant to CPLR 3403(a)(4). Counsel further asserts that he understands this Court’s trial calendar “is such that the claimant cannot be given an early trial date to effectuate a preferential trial date” (Affirmation in Support, ¶ 7) and requests that the Claim be transferred to another judge so Claimant can have a preference due to his advanced age (id. at ¶ 8).

In her affirmation in opposition, Assistant Attorney General Ellen Hopkins asserts that Claimant was already given a preferential trial date and that the scheduled trial date should not be advanced in order to avoid undue prejudice to Defendant (Hopkins Affirmation, ¶ 6).

CPLR 3403(a) provides:
Civil cases shall be tried in the order in which notes of issue have been filed, but the following shall be entitled to a preference: ...
  1. in any action upon the application of a party who has reached the age of seventy years,

At the time Claimant’s Note of Issue and Certificate of Readiness was filed, the Court’s calendar contained five cases where notes of issue had been filed but trial dates had not been assigned. Based upon the preference request letter of Claimant’s counsel, dated September 26, 2007, this Court gave Claimant’s case the first available trial date – April 22, 2008 – then set the trial dates for the other cases. As the Court has already provided Claimant with a trial preference, the motion for a trial preference is denied.

Cases in the Court of Claims are assigned to individual judges upon the filing of the Claim with the Court (see Uniform Rules for the Court of Claims § 206.3[b]). Section 206.3(c)(6) of the Uniform Rules for the Court of Claims provides that the Chief Administrator of the Courts may authorize the transfer of an action from one judge to another. Such authority does not rest with this Court. Thus, a motion seeking such relief should have been addressed to the Presiding Judge, as the Chief Administrator of this Court. As the Chief Administrator has not authorized the transfer of this matter to another judge, that part of Claimant’s motion is also denied.

Claimant’s motions for a trial preference and for transfer of the matter to another judge having been denied, the liability portion of this bifurcated trial shall take place as previously directed on Tuesday, April 22, 2008 at 10:00 a.m.

February 20, 2008
Albany, New York

Judge of the Court of Claims

The following papers were read and considered by the Court on Claimant’s motion:

Papers Numbered

Notice of Motion, Affirmation in Support 1

Affirmation of Assistant Attorney General
and Exhibits Attached 2

Filed Papers: Claim, Answer