Wilson v. Leite

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated April 26, 1973, which denied her motion for an examination before trial of the infant plaintiff and his guardian and awarded $100 costs to plaintiff. Order modified by striking therefrom the decretal paragraph which denied the motion and by substituting therefor the following: “ Ordered that defendant’s motion is granted, the examinations of the infant plaintiff and his guardian shall proceed at a time and place to be fixed by defendant upon ten days’ written notice”. As so modified, order affirmed, without costs. In our opinion, the denial of the motion was an improvident exercise of discretion. We believe the $100 costs awarded to plaintiff will adequately compensate him and his mother for having to appear a second time for an examination before trial. Martuscello, Acting P. J., Latham, Gulotta, Christ and Benjamin, JJ., concur.