
    Susan Libow, Also Known as Susan Wallman, et al., Plaintiffs, v William Brill, Defendant.
    Supreme Court, Special Term, Nassau County,
    March 11, 1985
    APPEARANCES OF COUNSEL
    
      McCabe, Nicolini & Paradise for defendant. George Rockman for plaintiff.
   OPINION OF THE COURT

Alfred S. Robbins, J.

This motion by defendant for an order striking plaintiffs’ note of issue or, in the alternative, denying plaintiffs’ application for a special preference based on age, is granted in the alternative.

The plaintiffs filed their note of issue and requested a special preference pursuant to CPLR 3403 (a) (4) based on age. Such a preference is normally handled almost in a pro forma manner by the calendar clerk. However, in this instance the court is presented with something out of the norm. The party requesting the age preference is not the party who is over 70 years of age. Here, the parties seeking the special preference admit that they are not over 70 years of age, but seek such preference based on the fact that the defendant is over 70 years of age.

The plaintiffs’ rationale for such a request is that the defendant is in allegedly poor health and may not be alive at the time of trial without a special preference accelerating the trial date.

The research of the authorities by this court discloses that historically the party seeking a special preference is the party who is 70 years or older and the person for whom the preference has been designed. In this case, the applicant for the preference is not the person the preference was designed to benefit. This court, therefore, finds that the statute is designed specifically to benefit the person who is 70 years or older and thus it is personal to such person or party. This applicant does not fall within the purview of the design of the statute and hence the application must in all respects be denied.  