What Is CPLR § 3403?
Many New York civil courts operate on a backlog. When an injured plaintiff files a Note of Issue, the case joins a chronological queue that, in the more populated counties, stretches for several years. For most plaintiffs, that wait is simply part of the process. For others, it is an injustice in itself. A terminally ill victim who waits three years for trial may never reach it. An elderly plaintiff facing eviction after a construction accident cannot wait five years to be made whole.
New York Civil Practice Law and Rules (CPLR) § 3403 is the specific statute that addresses this problem. It allows qualifying litigants to bypass the standard chronological queue and receive an accelerated trial date. This procedural advantage is called a trial preference. When granted, it moves the case to a separate, fast-tracked calendar where trial dates open in months rather than years. The statute's core purpose is to deliver urgent judicial relief to those who cannot afford, in any meaningful sense, to wait.
In This Article
What Types of Personal Injury Cases Are Eligible for Trial Preference?
CPLR § 3403 identifies six distinct grounds on which a trial preference may be sought or granted. Each category reflects a different form of hardship or public interest that the legislature determined warrants moving a case ahead of the general queue.
Age-Based Track
Any party who has reached the age of 70 has an automatic right to a trial preference. No showing of hardship, health deterioration, or financial need is required. The preference follows from age alone. This category reflects the legislature's recognition that older litigants face a disproportionate risk that the standard multi-year wait will outlast their ability to participate in or benefit from the outcome.
Medical Malpractice Fast-Track
Cases involving claims of medical, dental, or podiatric malpractice carry a built-in statutory preference. Because these actions are typically document-intensive, involve complex expert testimony, and impact plaintiffs who have already suffered medically caused harm, the legislature has determined that this entire category of litigation should move faster than ordinary civil cases.
Terminally Ill Plaintiff
Where the plaintiff is suffering from a terminal illness and alleges that the condition was caused or aggravated by the defendant's conduct, a trial preference is available on that ground. This category reaches a wide range of personal injury scenarios: a construction worker later diagnosed with terminal mesothelioma from asbestos exposure at a worksite, a car crash victim whose injuries contributed to a fatal condition, or a patient whose delayed diagnosis allowed a curable cancer to become terminal. The statute is designed to ensure that these plaintiffs can receive a verdict, and the financial security that comes with it, while they are still alive to benefit.
Interests of Justice
CPLR § 3403 includes a catch-all category for cases where an early trial serves the interests of justice. Courts interpret this ground strictly, and the evidentiary threshold is significantly higher than for the other preference categories. The specific standard courts apply is addressed in the Limits section below.
Revived Actions Under the Child Victims Act and Adult Survivors Act
Cases brought back to life under CPLR §§ 214-g or 214-j, the lookback windows created by the Child Victims Act and the Adult Survivors Act, carry a statutory preference. These provisions revived otherwise time-barred claims involving childhood sexual abuse and adult sexual assault. Given the extraordinary legislative purpose behind these revival windows and the age and vulnerability of many of the plaintiffs, the legislature determined that revived actions should move ahead of the general queue.
Government Party
Actions brought by or against the state, a political subdivision, or a public officer also carry a preference under the statute. This category differs from the others in one critical respect: the preference attaches only on the government's own application. A private plaintiff who sues a municipality cannot invoke this ground independently. The government entity itself must request accelerated scheduling.
Can an Injured Person Automatically Get an Early Trial Date?
A trial preference is not awarded simply because a plaintiff believes they deserve one. Outside of the age-70 and malpractice categories (where the preference follows from the nature of the case or the age of the party), obtaining a preference requires active effort and procedural compliance.
The first requirement is that the case must be trial-ready. The court will not entertain a preference application until the Note of Issue is on file and all discovery is complete, including depositions and any independent medical examination conducted by the defense.
The second requirement is the filing of a formal motion supported by compelling evidence. The court does not grant preferences on its own initiative. Plaintiff's counsel must file papers that document the specific ground being invoked (medical affidavits, financial records, or both) and demonstrate to the judge's satisfaction that the case qualifies. A well-documented motion is the difference between moving to the fast-track calendar and waiting years for a trial date.
What Happens If a Plaintiff Turns 70 or Falls Ill During a Lawsuit?
Most preference motions must be filed within a strict 10-day window after the Note of Issue is filed. CPLR § 3403(b) carves out a meaningful exception to this rule for age and medical hardship.
Under that provision, a plaintiff who reaches age 70 at any point while the lawsuit is pending, whether at the outset of litigation or three years in, can move for a preference at that time. The same flexibility applies to a plaintiff who receives a terminal diagnosis during the pendency of the case. There is no requirement that the age threshold or the medical condition existed when the lawsuit was filed or when the Note of Issue was served. The statute allows the preference to be sought as soon as the qualifying circumstance arises.
Important Limits of CPLR § 3403
A trial preference is a powerful procedural tool, but it is not a shortcut around the obligations that govern every civil case. Three limitations define where the statute's reach ends.
Discovery Must Still Be Completed
A plaintiff who moves for a preference before discovery is finished should expect one of two outcomes: outright denial, or a conditional grant requiring completion of all outstanding obligations by a firm court-imposed deadline. The fast-track calendar moves the trial date forward. It does not compress or eliminate the litigation steps required to reach it.
The Evidentiary Bar Is High
Judges are protective of the preferred calendar. They will not expand it with inadequate paperwork. A preference motion that lacks a detailed physician affidavit for a terminal illness claim, or that substitutes vague assertions of hardship for documented proof of financial ruin, will be denied. The supporting papers must be specific, credible, and tied directly to the statutory ground being invoked.
“Interests of Justice” Has a Strict Destitution Standard
Courts have consistently held that financial hardship caused by an accident, even significant hardship, does not automatically qualify a plaintiff for a preference under the interests-of-justice ground. Being unable to work, depleting savings, or carrying medical debt is the ordinary consequence of serious injury, not the extraordinary destitution the statute envisions. To qualify, a plaintiff typically must show complete dependence on public assistance, an active eviction proceeding, or a level of financial collapse that goes well beyond the hardship shared by most personal injury claimants.
When a Trial Preference May Be Denied or Revoked
Securing a preference motion is not the end of the process. Courts retain the authority to revoke a previously granted preference, and defendants have procedural tools available to oppose or defeat a motion before it is granted.
Missing the 10-Day Filing Window
For grounds other than age 70 or terminal illness, the statute requires that the preference motion be filed within 10 days of the Note of Issue. This is a strict deadline. A plaintiff who misses this window, generally loses the right to seek a preference on that ground, absent extraordinary circumstances. Timely action by counsel immediately after the Note of Issue is filed is essential.
Plaintiff Misconduct
A preference granted by the court can be revoked if the plaintiff engages in conduct that undermines the integrity of the litigation. Stalling discovery, failing to appear for court-ordered depositions, refusing to submit to a defense medical examination, or otherwise obstructing the progress of the case can lead a judge to strip the preference as a sanction. The fast-track calendar is a privilege reserved for litigants who are themselves ready to proceed to trial.
Defense Opposition Strategies
A defendant can successfully oppose a preference motion by demonstrating that the factual predicate for the preference does not actually exist. In terminal illness cases, the defense may challenge whether the medical prognosis meets the statutory threshold, for example by presenting expert evidence that the plaintiff's condition is serious but not terminal. In interests-of-justice cases, the defense may show that the plaintiff has access to financial resources that undercut the destitution claim. Where a preference would be genuinely prejudicial, the court may weigh that prejudice against the plaintiff's need for urgency.
How CPLR § 3403 Affects Personal Injury Settlement Negotiations
The insurance industry's approach to contested personal injury claims is built on the assumption that time is on its side. Their strategy often involves making below-value offers early, letting the case age, and waiting for the plaintiff to capitulate rather than endure a multi-year wait.
A trial preference dismantles this strategy at its foundation. When a court grants a preference and locks in a trial date in a few months rather than in a few years, the defendant loses its most reliable tool: delay. The calculation changes immediately. The insurance carrier now faces the realistic prospect of a jury verdict on a condensed timeline, and the cost-benefit analysis of holding out shifts dramatically in the plaintiff's favor.
In practice, securing a trial preference frequently compels insurance adjusters to substantially increase settlement offers. Cases that had been dormant, where the insurer was comfortable making minimal movement, often become alive again with plea negotiations. The imminent trial date forces a reassessment of the full range of potential outcomes, including a plaintiff's verdict that could exceed any reasonable settlement figure. Experienced personal injury attorneys use the preference as a lever not just to accelerate the trial calendar, but to accelerate the entire resolution of the case.
Sternberg Injury Law Firm
At Sternberg Injury Law Firm, we often represent injured individuals who cannot afford to wait years for justice. Drafting a preference motion that survives judicial scrutiny requires more than citing the statute. It requires detailed medical affidavits, carefully documented financial evidence, and a thorough understanding of how courts evaluate these applications. Working with clients from the earliest stages of a case allows the litigation to be structured for a fast-track from the outset. Injured victims who may qualify for a trial preference can contact us for a free consultation by phone, text, or email.
NY CPLR § 3403 Frequently Asked Questions
Once a preference is granted, the case moves to the court's preferred “ready day certain” calendar, which is managed separately from the general trial queue. Preferred cases are typically assigned a firm trial date within a few months. The exact timeline varies by county and the volume of other preferred cases already scheduled, but the difference compared to the standard wait is measured in years.
The statute permits any party to move for a preference, but defendants almost never do, because delay typically favors the defense. The limited exception is for government defendants. Under CPLR § 3403(a)(1), a preference is available in actions involving the state or a political subdivision, but only when the government itself requests it. A private plaintiff suing a municipality cannot invoke this ground independently.
A preference schedules the formal trial date. It does not directly compel a settlement. It just remove the insurer’s most effective tool: the ability to use time as leverage. When a carrier can no longer count on years of delay to wear down a claimant, the settlement calculus shifts immediately. Many cases resolve quickly once a preferred trial date is locked in because the insurer faces a real verdict on a compressed timeline.
It depends on the grounds of the motion. Age-based preferences require proof of age. Terminal illness preferences require a detailed physician affidavit; vague statements about declining health will not satisfy the court. Interests-of-justice preferences require documentation of financial destitution: public assistance records, eviction notices, or proof of total financial collapse. Financial hardship alone, without that level of documentation, is not enough.