Janicek v. Koke

| N.Y. App. Div. | Jul 5, 1966

In an action to recover damages for personal injuries, loss of services, etc., defendant George Peter Janicek appeals: (1) from an order of the Supreme Court, Suffolk County, entered November 17, 1965, which granted plaintiffs’ motion for a general preference in trial; and (2) from an order of said court entered January 28, 1966, which upon reargument adhered to the court’s original determination. Order of .January 28,1966 reversed, with $10 costs and disbursements; preference vacated and motion denied. Appeal from order of November 17, 1965 dismissed, without costs. Such order was superseded by the later order granting reargument. On the basis of the medical proof submitted, the granting of a general preference was an improvident exercise of discretion. Moreover, in the absence of a stenographic transcript of the pretrial hearing or other appropriate proof showing the facts upon which the court below exercised its discretion, the granting of the preference pursuant to CPLR 3403 likewise cannot be sustained (Buonanno v. Cyr, 19 A D 2d 792). Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.