Appellate Division of the Supreme Court of New York, 1969

Rothberg v. Justus

Rothberg v. Justus
Appellate Division of the Supreme Court of New York · Decided February 24, 1969
31 A.D.2d 845; 298 N.Y.S.2d 113; 1969 N.Y. App. Div. LEXIS 4539
Rothberg v. Justus

Opinion of the Court

In a negligence action to recover damages for personal injuries, loss of services, etc,, plaintiffs appeal, as limited by their brief, from so much *846of an order of the Supreme Court, Queens County, dated June 16, 1967, as, on reconsideration, adhered to a decision denying a general preference. Order reversed insofar as appealed from, on the law and the facts, with one bill of $10 costs and disbursements against respondents jointly, and general preference granted. In our opinion the claimed injuries, if established, would support a verdict in excess of $10,000. Defendants submitted no medical proof contradicting that of plaintiffs, even though they had had a physical examination of the injured plaintiff. On such record, it was an improvident exercise of discretion to deny a general preference (Pass v. D’Andrea, 30 A D 2d 841) and to ignore said plaintiff’s offer to submit to an examination by an impartial, court-appointed doctor. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuseello, JJ., concur.

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