19 Misc. 2d 555 | N.Y. Sup. Ct. | 1959
Motion for a preference is denied.
The cause of action arises out of the plaintiff’s fall caused by tripping over a defective carpet runner in a hotel.
The plaintiff, a woman 40 years of age, was- suffering from a heart condition prior to the fall. The physician’s affidavit says that this “ previous heart abnormality was aggravated by the fall ”; and also that she “ may not * * * be alive in the event that this case should proceed to trial at a later date ”. Thus he does not say affirmatively that the plaintiff is in imminent danger of death in the near future. It has been held that ‘ ‘ There must be * * * an unreserved and unequivocal affidavit by a physician and * * * the opinion of the physician must be supported by credible medical facts ”. (Dodumoff v. Lyons, 4 A D 2d 626, 627 [1st Dept.].) And further, “ There is no persuasive showing of * * * probability of death before trial in the regular order; and the granting of the motion was an improvident exercise of discretion”. [O’Callaghan v. Brawley, 276 App. Div. 908 [2d Dept.].)
Therefore, the plaintiff has failed to establish facts entitling her to a preference.
Motion denied.
