Tytel v. Battery Beer Distributors, Inc.

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered September 16, 1992, which denied plaintiffs’ motion for a special trial preference, unanimously reversed, on the law, the motion granted, with costs, and an immediate trial ordered.

It is undisputed that the injured plaintiff in this negligence action is 75 years of age. In denying plaintiff a trial preference, the motion court overlooked the mandatory language of CPLR 3403 (a) (4), which provides for such a preference "in any action” upon the application of a party who has reached age 70. The 1962 decision in Brier v Plaut (37 Misc 2d 476), cited as contrary authority by the motion court, no longer has any pertinence, in light of the 1970 and 1979 amendments to the above-mentioned rule which removed the preference entitlement from the exercise of judicial discretion once the threshold age of the litigant is shown (see, 4 Weinstein-KornMiller, NY Civ Prac If 3403.18). Concur—Carro, J. P., Ellerin, Wallach, Ross and Rubin, JJ.