preference claim in New York

1962Whether we agree or disagree with the conclusion or not, the Appellate Division of the First and Second Departments have repeatedly held that advanced age alone is insufficient to warrant a preference under rule 151 of the Rules of Civil Practice (Bitterman v. 2007 Davidson Ave., 278 App. Div. 759 ) and that unless there is an unequivocal showing that death is imminent or that the plaintiff will not live until the time of trial the granting of a preference is an improvident exercise of discretion (Kuznetz v. Neuman, 3 A D 2d 743; Dodumoff v. Lyons, 4 A D 2d 626; De Lisle v. Rodriguez, 7 A D 2d

1961P., Rabin, Stevens and Eager, JJ., concur in Per Curiam opinion; McNally, J., dissents and votes to affirm in following memorandum: I dissent and vote to affirm the order denying a preference under rule 151 of the Rules of Civil Practice on the authority of Bitterman v. 2007 Davidson Ave. ( 278 App. Div. 759 ) and Gray v. F & R Trucking Co. (3 A D 2d 735).

2024Campbell v Kelly, 42 AD2d 601 (2d Dept 1973) is simply inapposite.

1997Upon the papers submitted in support of the motion and the papers filed in opposition thereto, it is Ordered that the branches of the motion which are for leave to appeal, for a preference, and to seal exhibits are granted, and it is further, Ordered that the motion is otherwise denied as academic (see, Matter of Malcolm S., 241 AD2d 469 [decided herewith]).

1980In Salla v County of Monroe, the Court of Appeals declared the preference requirement for residents of the State invalid under the Privileges and Immunities Clause of the United States Constitution ( 48 N.Y.2d 514 [1979], cert den., sub nom Abrams v Salla, 64 L ed 262 [1980]).

1978Furthermore, it has long been recognized that an employee has standing to challenge the unconstitutional interference of third persons with the employer-employee relationship (Truax v Raich, 239 US 33, 38-39 ).

1976Motion by respondents (1) to vacate the automatic stay granted to the appellants by virtue of statute (CPLR 5519, subd [a], par 1) upon their appeal from a judgment of the Supreme Court, Kings County, entered January 19, 1976, (2) for a preference in the hearing of said appeal, or (3) in the alternative, for summary affirmance of the said judgment on the ground that the case comes within the purview of Steele v Board of Educ. of City of N. Y. ( 52 AD2d 605 ).

1961In Bailey v. Smith ( 27 Misc 2d 168 ) decided herewith, the court has traced the power of the court to grant a preference under rule 2A, and held that it must be read in the light of rule 151 of the Buies of Civil Practice, and as a refinement of the provisions thereof in actions involving personal injuries, “ resulting in permanent or protracted disability” (rule 2A).

1960Apparently he misunderstands my holding in Blasi v. Checker Fuel Oil Corp. ( 20 Misc 2d 359 ) that on the granting of summary judgment an assessment of damages should take place only after a rule 9 preference is obtained, for summary judgment was granted in the case cited.

1960Burchell v. Elbe Cab Corp. ( 5 AD 2d 889 ) involved an application for a preference under rule 9 of the Supreme Court, Kings County Rules.

1960Co. ( 279 App. Div. 747, 748 ) the Appellate Division of this Department stated: ‘ ‘ The fact that plaintiff intends to institute another action in Kings County where he would be entitled to a preference under rule 7 of the Kings County Supreme Trial Term Rules is not sufficient reason for denying the motion.

1958(Congress v. Congress, 284 App. Div. 807 ; Weiner v. Kleiner, 282 App. Div. 1078 .) Murphy, Hallinan and Kleinfeld, JJ., concur; Wenzel, Acting P. J., and Beldock, J., dissent and vote to affirm the order.

1958(Congress v. Congress, 284 App. Div. 807 ; Weiner v. Kleiner, 282 App. Div. 1078 .) Murphy, Hallinan and Kleinfeld, JJ., concur; Wenzel, Acting P. J., and Beldock, J., dissent and vote to affirm the order.

1956Co., 245 App. Div. 745 ; Galowitz v. Magner, 208 App. Div. 6 , and Sutherland v. Albany Cold Stor. & Warehouse Co., 171 N. Y. 269 .) Consequently, appellant was entitled to the preference provided by the rule, despite the provisions of subdivision (b) thereof, which exclude from its operation actions to recover damages based on negligence.

1956Co., 245 App. Div. 745 ; Galowitz v. Magner, 208 App. Div. 6 , and Sutherland v. Albany Cold Stor. & Warehouse Co., 171 N. Y. 269 .) Consequently, appellant was entitled to the preference provided by the rule, despite the provisions of subdivision (b) thereof, which exclude from its operation actions to recover damages based on negligence.

1956Co., 245 App. Div. 745 ; Galowitz v. Magner, 208 App. Div. 6 , and Sutherland v. Albany Cold Stor. & Warehouse Co., 171 N. Y. 269 .) Consequently, appellant was entitled to the preference provided by the rule, despite the provisions of subdivision (b) thereof, which exclude from its operation actions to recover damages based on negligence.

1952(See Matter of Hinkley, 183 Misc. 168, 170 ), since, “ As has frequently been noted (Matter of Hardy, 216 N. Y. 132, 137 ; Matter of Gillender, 98 Misc. 521, 523 ; Matter of Jussila, 104 id. 579, 580 ), and is wholly obvious to any person acquainted with Surrogate’s Court practice, a proceeding to secure the production of a purported testamentary instrument is an independent special proceeding which has no relation to any other proceeding, the institution of which is authorized by the Surrogate’s Court Act (Matter of Yung, 216 App. Div. 595, 598 .) ” (Matter of Kennedy, 164 Misc. 796, 798 , su

1952(See Matter of Hinkley, 183 Misc. 168, 170 ), since, “ As has frequently been noted (Matter of Hardy, 216 N. Y. 132, 137 ; Matter of Gillender, 98 Misc. 521, 523 ; Matter of Jussila, 104 id. 579, 580 ), and is wholly obvious to any person acquainted with Surrogate’s Court practice, a proceeding to secure the production of a purported testamentary instrument is an independent special proceeding which has no relation to any other proceeding, the institution of which is authorized by the Surrogate’s Court Act (Matter of Yung, 216 App. Div. 595, 598 .) ” (Matter of Kennedy, 164 Misc. 796, 798 , su

1952(See Matter of Hinkley, 183 Misc. 168, 170 ), since, “ As has frequently been noted (Matter of Hardy, 216 N. Y. 132, 137 ; Matter of Gillender, 98 Misc. 521, 523 ; Matter of Jussila, 104 id. 579, 580 ), and is wholly obvious to any person acquainted with Surrogate’s Court practice, a proceeding to secure the production of a purported testamentary instrument is an independent special proceeding which has no relation to any other proceeding, the institution of which is authorized by the Surrogate’s Court Act (Matter of Yung, 216 App. Div. 595, 598 .) ” (Matter of Kennedy, 164 Misc. 796, 798 , su

1952(See Matter of Hinkley, 183 Misc. 168, 170 ), since, “ As has frequently been noted (Matter of Hardy, 216 N. Y. 132, 137 ; Matter of Gillender, 98 Misc. 521, 523 ; Matter of Jussila, 104 id. 579, 580 ), and is wholly obvious to any person acquainted with Surrogate’s Court practice, a proceeding to secure the production of a purported testamentary instrument is an independent special proceeding which has no relation to any other proceeding, the institution of which is authorized by the Surrogate’s Court Act (Matter of Yung, 216 App. Div. 595, 598 .) ” (Matter of Kennedy, 164 Misc. 796, 798 , su

1943This is clear, for, as was said in Billings v. Russell et al. ( 101 N. Y. 226, 234 ) the general rule is that “ where there is an actual intent to defraud, no form in which the transaction is put can shield the property so transferred from the claim of creditors, even though a full and adequate consideration be received for the same.” True, the prayer in plaintiff’s complaint is limited to a demand for money damages, but the pleadings should be conformed to the proof and the plaintiff awarded the relief to which it is entitled under the proof.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1939The rules relating to the conditions which must exist generally before a preference under this exception will be granted, may be found in Matter of Lloyd ( 238 N. Y. 138 ); Matter of Lloyd ( 166 App. Div. 1 ); Matter of Waxman ( 129 Misc. 829 ); Matter of Cameron (supra); Matter of Wenner ( 125 App. Div. 358 ; affd., 193 N. Y. 672 ); Bliven v. Seymour (88 id. 469); Scofield v. Adams ( 12 Hun, 366 ) and Stewart v. Chambers (2 Sandf.

1931Co., 176 U. S. 298 .) The underlying thought in this preference rule is that for the sake of the public the railroad or public utility must be kept in operation and maintained as a going concern.

1929(See Matter of Schroeder, 113 App. Div. 204, 207 ; affd., 186 N. Y. 537 .) The foregoing is sufficient to dispose of the present application, since under the law the petitioner is clearly not entitled to a preference on his claim.