WHITE v. METROPOLITAN OPERA ASSOCIATIONS INC (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered October 3, 2022, which, upon renewal, denied plaintiff Wendy White's motion for a special trial preference, unanimously affirmed, without costs.

In this personal injury action, plaintiff, a renowned opera singer, was allegedly injured by a fall from an elevated platform while she was performing at the Metropolitan Opera House, a venue owned and operated by defendant Metropolitan Opera Association, Inc. (the Met).

It was a provident exercise of discretion for the court to deny plaintiff a special trial preference in the interests of justice (CPLR 3403[a][3]).  The statute allows courts to analyze preference requests “in light of the unique circumstances of that case” (Patterson v. Anderson Ave. Assocs., 242 A.D.2d 430, 430, 662 N.Y.S.2d 34 [1st Dept. 1997]).  Here, while plaintiff's income decreased post-accident, it remained reasonably adequate (see Martinkovic v. Chrysler Leasing Corp., 29 A.D.2d 636, 286 N.Y.S.2d 195 [1st Dept. 1986]);  compare Roman v. Sullivan Paramedicine, Inc., 101 A.D.3d 443, 443, 955 N.Y.S.2d 36 [1st Dept. 2012] [finding that a preference was warranted where disabling injury prevented plaintiff from working, she had exhausted her no-fault coverage and survived on food stamps, and lacked the resources to pay for necessary medical care];  Kellman v. 45 Tiemann Assoc., Inc., 213 A.D.2d 151, 151, 622 N.Y.S.2d 958 [1st Dept. 1995], affd on other grounds 87 N.Y.2d 871, 638 N.Y.S.2d 937, 662 N.E.2d 255 [1995] [holding that trial court properly granted a special trial preference where accident rendered plaintiff a paraplegic and she relied on Social Security disability payments to meet her financial burdens];  Srajer v. Vanity Fair Mills, Inc., 159 A.D.2d 286, 552 N.Y.S.2d 291 [1st Dept. 1990]).

Further, contrary to defendant's argument, this appeal is not rendered moot by plaintiff's subsequent qualification for a special trial preference based upon age.

Lastly, we agree with the second department that CPLR 3403(a) does not automatically entitle a litigant to more than one trial preference per case (see Green v. Vogel, 144 A.D.2d 66, 67, 537 N.Y.S.2d 180 [2d Dept. 1989]).  Also, plaintiff's evidence in this case, would not qualify as “exceptional circumstances” so as to justify imposition of a second statutory preference or preference stacking (id. at 70, 537 N.Y.S.2d 180;  see also Stralberg v. Mauer, 166 A.D.2d 522, 560 N.Y.S.2d 804 [2d Dept. 1990]).