Doyle v. Vashi

OPINION OF THE COURT

Charles A. Kuffner, J.

In this action to recover damages for personal injuries sustained by plaintiff through the alleged medical malpractice of the defendant physicians and hospital, the plaintiff moves for an order pursuant to CPLR 3403 (subd [a], par 5) granting the action a special trial preference. Plaintiff further seeks an order of this court directing that a medical malpractice panel hearing as required by section 148-a of the Judiciary Law be held “without undue delay” and that the action thereafter proceed “immediately” to trial.

With respect to the application for a special preference, the court notes that the language of CPLR 3403 is mandatory. The court must grant a special preference to such actions. Recently, in the case of Hladik v Ellis Hosp. (90 AD2d 584) the Third Department held that Trial Term erred in denying a special preference in a medical malpractice action. The court held that no showing of any special circumstance apart from the demonstration that the action is one in medical malpractice is required.

Accordingly, the application foil a special preference is granted.

Plaintiff’s counsel’s further assertion, however, that upon the granting of a special preference the action is entitled to a medical malpractice hearing “without undue delay” and thereafter to an “immediate trial” in this court is without merit.

As counsel concedes, the granting of a special trial preference does not obviate the requirement of a medical malpractice panel hearing. To order such a hearing without “undue delay” is meaningless. The instant action will be reached for a panel hearing in its regular order with no special preference over those actions already waiting for panel hearings. Likewise, upon completion of the medical malpractice panel hearing, this action is not, by virtue of the special preference granted under CPLR 3403 (subd [a], par 5), entitled to an immediate trial. The granting of a special preference merely serves to give the action so designated a preference in order of trial over other cases receiving only a general preference. It does not entitle that case to a preference over all other preferred cases already on the calendar.

Accordingly, that portion of the motion is denied.