MEMORANDUM

SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF QUEENS

IA PART 4

BY: CHARLES A. LaTORELLA, Jr., JUSTICE

LUCAS JOHN OJO and RENEE OJO,                                       Index Number: 8578/1998

                                                   Plaintiff,
                 -against-                                                                       Motion Date: October 19, 1999

GLORIOSO T. FLORES, M.D. EMMANUEL O.
ASARE, M.D., SPRINGFIELD MEDICAL                                 Cal. Number: 30
CENTER, PENINSULA HOSPITAL,

                                                     Defendant.

In this action for personal injuries, plaintiff, LUCAS OJO claims that he became terminally ill as a result of the negligence of the defendants. A preliminary conference was requested pursuant to CPLR 3407. A preliminary conference order by this court dated July 9, 1998 granted a trial preference on consent of the defendants, specifying that the trial be held no later than July 9, l999.

Plaintiff now moves pursuant to CPLR 3403 (a) (6) for a preference. Defendants oppose the motion, asserting that plaintiff is not entitled to a preference, because, they allege, he is no longer terminally ill.

Counsel for both sides (a total of four law firms) seem to be under the misapprehension that despite the existence of a CPLR3407 preliminary conference order providing for a preference, and setting a specific trial date, the order is not self-executing, and a separate post-note motion under CPLR 3403 (a) (6) is necessary. Indeed, counsel for defendants have even described the language of the preliminary conference order mandating a trial by July 9, 1999 as Apro forma@.

This court holds that a preference granted by preliminary conference order under CPLR 3407 is self-executing, and does not require any further motion to effectuate it. The preliminary conference procedure for obtaining a preference is separate and distinct from the post-note motion procedure under CPLR 3403(a)(6). Far from being Apro forma@, the trial date set forth in a preliminary conference order is self-executing, once served upon the Clerk of Trial Term.

CPLR 3403 governs certain trial preferences. Subdivision(a) of Rule 3403 sets forth specific preferences, and provides in Paragraph 6 thereof, that a preference may be granted in,

Aan action to recover damages for personal injuries where the Plaintiff is terminally ill and alleges that such terminal illness is a result of the conduct, culpability or negligence of the defendant@

The manner and means of obtaining such a preference under CPLR 3403 is as follows:

A(b) obtaining preference.

AUnless the court otherwise orders, notice of a motion for preference shall be served with the note of issue by the party serving the note of issue, or ten days after such service by any other party; or thereafter during the pendency of the action upon the application of a party who reaches the age of seventy years, or is terminally ill.@

The feature to be particularly noted is that the motion for a special preference under Paragraph 6 of subdivision (a) can only be made after the note of issue is filed.

Paragraph 6 of subdivision (a) of CPLR 3403 was added in l990, by Laws of l990, Chapter 670, Section 1. The obvious intent was to provide statutory authority for the court to intervene in cases where there was a substantial risk that a plaintiff could die before his or her case was heard. The motion contemplated is a post-note motion, much like a demand for a jury trial (motion must be made at time of filing note of issue, or within ten days thereafter).

However, Rule 3403 did not cover a situation where, for example, a person could be in danger of dying prior to the filing of a note of issue. This constituted a substantial gap in the statute since no party could move for a preference until the note of issue was filed. Especially in medical malpractice cases, discovery could be very prolonged; motion practice could be extensive; and discovery could be stayed due to the pendency of certain motions. CPLR 3214(b)

 To remedy this gap in its statutory scheme, the legislature enacted CPLR 3407 by Laws of l992, Chapter 582, Section 1. See Professor Siegel's Commentaries, annexed to McKinney's CPLR 3407. Rule 3407 provides as follows:

A(a) Request for conference. At any time, a party to an action who is terminally ill, and who asserts in a pleading in such action that such terminal illness is the result of the culpable conduct of another party to such action, may request an expedited preliminary conference in such action. Such request shall be filed in writing with the clerk of the court, and shall be accompanied by a physician's affidavit stating that the party is terminally ill, the nature of the terminal illness, and the duration of life expectancy of such party, if known. The court shall hold a preliminary conference in such action within twenty days after the filing of such a request.

(b)1. Preliminary conference. At such preliminary conference, the court shall issue an order establishing a schedule for the completion of all discovery proceedings, to be completed within ninety days after the date of the preliminary conference, unless it can be demonstrated for good cause that a longer period is necessary.

2. At such preliminary conference, the court shall issue an order that a note of issue and certificate of readiness be filed in such action within a period of time specified in the order, that the action receive a preference in trial, and that the trial be commenced within one year from the date of such order. In its discretion, and upon application of any party, the court may advance or adjourn such trial date based on the circumstances of the case.

3. Notwithstanding the provisions of subdivision (b) of Rule 3214 of this chapter, the service or pendency of a motion under rule 3211, 3212 or section 3213 of this chapter shall not stay disclosure in an action where a preliminary conference order has been entered pursuant to this rule.@

In light of the foregoing, it is obvious that the preliminary conference procedure under CPLR 3407 is separate and distinct from the motion procedure under CPLR 3403. The Legislature intended to provide an additional remedy, beyond that available post-note in CPLR 3403. This remedy is available at any time prior to the note of issue, and a preliminary conference order granting a preference is self-executing. No further motion under CPLR 3403 is necessary or appropriate.

Other matters presented by this motion include (a) whether the original preference should be vacated in light of medical evidence; and (b) the setting of a new trial date (the previous date having been stayed by a Bankruptcy Court order). The court will treat the plaintiff's motion under CPLR 3403 as a motion to modify the preliminary conference order to set a new trial date. Further, the court will treat defendants= opposition to plaintiff's 3403 motion as a motion to vacate the preference granted in the preliminary conference order pursuant to Rule 3407.

This court will first deal with the issue of defendants= application to vacate the preference heretofore granted by consent in the preliminary conference order. In support of their contention that the preference granted in the preliminary conference order should be vacated, defendants fail to submit the affidavit of a physician, to the effect that plaintiff's condition is not terminal. This, despite the fact that plaintiff submits a physician's affidavit clearly stating, within a reasonable degree of medical certainty, that plaintiff is terminally ill, and that it is Aunlikely he will survive until the time of trial.@ (Dr. Fletcher's affidavit, March 12, 1999). (The plaintiff's motion was stayed due to a Bankruptcy Court order, as discussed below).

Instead, defendants rely entirely on certain portions of hospital records, wherein it is stated, in effect, that plaintiff does not show symptoms of cancer. These records all refer to certain tests, containing phrases such as Ano evidence@ that plaintiff has cancer, or Aessentially negative study.@ The most recent note, dated 10/13/99 by Dr. Schockett, states that plaintiff is Adisease free@ according to certain tests, but goes on to state, A[I]n view of the initial staging of his disease, his prognosis is guarded.@ For all this court knows, absent expert interpretation, these notes may simply indicate that plaintiff is in remission at the moment.

Absent an affidavit by a physician stating within a reasonable degree of medical certainty that plaintiff's condition is not terminal, these notes do not suffice to constitute a basis for vacating the preference consented to by defendants. It is not the function of this court to interpret hospital notes; that is for a duly qualified expert. This court will not speculate as to what such experts= testimony would be. Nevertheless, none of these notes directly contradicts Dr. Fletcher's sworn statement that it is Aunlikely that [plaintiff] will survive until the time of trial.@ Thus, there is no basis upon which to vacate the special preference pursuant to CPLR 3407 heretofore granted on consent.

Since the original preference is still in effect, the court will now deal with the question of a trial date. The original trial date, July 9, 1999, was stayed due to an order of the United States Bankruptcy Court. Similarly, plaintiff's (mistaken) motion under Rule 3403 was also stayed. That stay has now been vacated by order of the Bankruptcy Court, dated September 16, 1999, and this action may now proceed. It remains for the Court to set a new trial date.

Accordingly, plaintiff's motion (treated as a motion to modify the preliminary conference order) is granted to the extent that trial is set for January 24, 2000. Service of a copy of the order to be entered herein shall be made forthwith upon the Clerk of Trial Term. Defendants= application (treated as a motion to vacate the original preference) is denied for the reasons set forth above.

Dated: November 30, 1999 ____________________

J.S.C.

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
SHORT-FORM ORDER
Present: Charles A. LaTorella, Jr., Justice IAS Part 4