Let’s face it, waiting for a case to progress to trial can at times feel like watching grass grow; the Civil Court system is not known for its speed in disposing cases, it can take years to get from index number to trial.  Civil plaintiffs who seek to recover for an injury must wait and wait some more.  Considering the need to promptly file in order to satisfy statute of limitations and perhaps notice of claim requirements to bring an action, pursuing a civil case in New York State Supreme Court can feel a lot like hurry up and wait.  While the plaintiff is waiting for their day in Court, oftentimes they cannot work due to the injuries suffered that prompted the lawsuit; bills continue to add up, legal loans can help but the interest rates are less than friendly.

What’s a plaintiff to do?  Injured, can’t work, don’t want a high interest loan; the plaintiff just wants their day in Court.  What’s a plaintiff’s lawyer to do to help the client?  The answer: seek special trial preference and if possible seek multiple preferences (a.k.a. stacking preferences).

New York State Civil Practice Law and Rules (CPLR) §3403, entitled trial preferences, states that “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:”  The statute then enumerates six preferences.  Of the six statutory enumerated preferences, an injured civil plaintiff is most likely to qualify for the preferences stated in subsection 3, 4, 5, or 6.

CPLR §3403(3) provides for special preference in an action in which the interests of justice will be served by early trial.  This is the proverbial “catch all” preference.  Convince the court that the interest of justice will be served and a special preference will be granted.

CPLR §3403(4) states that any action, upon the application of a party who has reached the age of seventy years, is entitled to a preference.  Simply put, if the client is over 70 years of age they are entitled to a special preference; this preference is virtually automatic.  Appellate Courts have held that the intent is to afford an elderly party swifter access to the courts so that they may obtain some measure of financial comfort during their remaining years.  Milton Point Realty Co. v. Haas, 91 A.D.2d 678 (2nd Dep’t 1982). See also Tytel v. Battery Beer Distribs., 194 A.D.2d 330 (1st Dep’t 1993) [held that CPLR §3403(a)(4), in providing for such special preference in any case on application of party who has reached age 70, is mandatory].

CPLR §3403(5) provides for special preference in an action to recover damages for medical, dental or podiatric malpractice.  If the action is based on such malpractice, this preference is also virtually automatic.

CPLR §3403(6) provides for special preference in an action to recover for personal injuries where the plaintiff is terminally ill and alleges that such terminal illness is a result of the negligence of the defendant.

While CPLR §3403 (4) and (5) are virtually automatic, what is not automatic is the granting of multiple preferences, also known as stacking preferences.

Stacking preferences is not required under CPLR §3403, however, latitude exists for stacking preferences at the trial courts discretion.  Green v. Vogel, 144 A.D.2d 66, 70 (2d Dep’t 1989).  When the trial court finds a compelling reason to do so, the stacking of preferences is permissible and well within the courts discretion.  Peck v. Brookdale Hosp. Med. Ctr., 7 Misc. 3d 571, 573 (N.Y. Sup. Ct. 2005).  see also Stralberg v. Mauer, 166 A.D.2d 522 (2d Dep’t 1990).

A plaintiff’s lawyer seeking to get their client swifter access to the Courts should, if the fact pattern allows, seek to stack preferences.  Presenting a compelling reason to the Court and achieving stacked preferences provides a plaintiff attorney an avenue for swifter justice for the client.