Pioneer Cooperative Fire Insurance v. Hinkle

On this motion under CPLB 3403, plaintiff seeks a preference and for a trial on a day certain of the above action at the January Trial Term of the Fulton County Supreme Court. The note of issue herein was filed on December 12, 1972.

The action is based upon the alleged fraud of the defendants in obtaining $16,000 from plaintiff pursuant to a fire insurance policy on a fire loss which plaintiff claims originated by the act, design and procurement of the defendants with intent to defraud the plaintiff.

Plaintiff has obtained an order of attachment and levied upon defendants’ property to insure that same would be available to secure payment of the ultimate judgment which plaintiff seeks to recover herein. The property levied upon has been stored in a private garage and storage fees therefor are accumulating daily.

Defendant Chester E. Hinkle has been indicted by the Fulton County Grand Jury on charges of arson and conspiracy and is awaiting trial in County Court at the term beginning February 5, 1973. The subject matter of the indictment concerns destruction of defendants ’ home by fire for which plaintiff, paid defendants the said sum of $16,000 the recovery of which is the basis of this action, and for which a trial preference is sought.

Defendant opposes the motion claiming that he would be prejudiced in the trial of the pending criminal charge if the trial preference is granted and this action is tried within the next two weeks. Concededly in the trial on the indictment, defendant has the right to remain silent and the presumption of his innocence would carry throughout said trial. Not so in *504the civil action, however, where defendant might be called to testify, and if he were to assert his privilege against self incrimination that might very well create an unfavorable inference in the minds of the jury. Therefore, the interest of justice would be better served if the trial of this action takes place subsequent to the disposition of the indictment particularly since that will occur within a relatively short period of time.

Accordingly, plaintiff’s motion is hereby denied without prejudice to its being renewed at the next Trial Term of this court beginning April 2, 1973.