Barbero v. City of New York

Order, entered on March 7, 1962, denying plaintiff a preference under rule 151 of the Rules of Civil Practice, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs, and the matter remanded to Special Term for further consideration, with leave to plaintiff to file an affidavit of merit. Plaintiff, presently about 80 years of age, has suffered three coronary attacks, and the affidavit of plaintiff’s physician states unequivocally his opinion that plaintiff is unlikely to survive a long delay in this case coming to trial. This combination of age and uncontroverted medical proof of plaintiff’s physical condition would seem to warrant the granting of a preference (Dodumoff v. Lyons, 4 A D 2d 626) if the other requisite, an affidavit of merit, were supplied. Concur — Breitel, J. P., Valente, Stevens, Eager and Steuer, JJ.