Longo v. Equitable Life Assurance Society — 100 Misc. 2d 606

Majority

p. 606

Anna Longo et al., Plaintiffs, v Equitable Life Assurance Society of the United States et al., Defendants.

Supreme Court, Trial Term, Queens County,

August 20, 1979

APPEARANCES OF COUNSEL

Samuel G. Rabinor for plaintiffs. Bower & Gradner for defendants.

OPINION OF THE COURT

This is an application by the plaintiff Guiseppi Longo for a special preference pursuant to CPLR 3403 (subd [a], par 4) by reason of his having reached the age in excess of 70 years. Motion is opposed by the defendants who maintain that the action in the main and that the true real party in interest in this action is the plaintiff, Anna Longo, she having been the injured party and that the movant, Guiseppi Longo, is her husband whose cause of action is one for loss of services. Plaintiffs’ bill of particulars lists Anna Longo’s special damages, part of which is listed her loss of earnings as an employed sewing machine operator earning an hourly wage.

Truly, the real party in interest in this case is plaintiff, Anna Longo, not Guiseppi Longo, but Anna Longo has as yet not even reached the age of 60 years and had the application been made by her it would have to be denied. It is the interpretation of this court based upon Campbell v Kelly ( 42 AD2d 601 ) that the statute, CPLR 3403 (subd [a]) which grants a trial preference in any action upon the application of a

p. 607

party who has reached the age of 70 years, is meant to be such party, one who is the "real party in interest”, not otherwise.

Motion is denied.