Price v. New York City Housing Authority , 635 N.Y.S.2d 191 ( 1995 )

—Order, Supreme Court, New York County (Edward Greenfield, J.), entered on or about July 26, 1995, which, insofar as appealed from, granted plaintiffs’ motion to reinstate the notice of issue and restore the case to the trial calendar under its present calendar number for an immediate trial to the extent of directing that the case be restored to the trial calendar upon the filing of a new note of issue, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of granting plaintiffs a trial preference pursuant to CPLR 3403 (a) (3), and otherwise affirmed, without costs.

The motion court as a court of coordinate jurisdiction properly declined to review the order of the trial court which, after declaring a mistrial, struck plaintiffs’ case from the trial calendar and conditioned restoration upon the filing of a new note of issue. However, since the trial should have been rescheduled pursuant to 22 NYCRR 202.45, we grant a preference in the interest of justice and direct an immediate trial (CPLR 3403 [a] [3]), conditioned upon plaintiffs filing the note of issue as directed by the motion court. Concur — Ellerin, J. P., Rubin, Nardelli, Williams and Mazzarelli, JJ.