Athanasiou v. National Transportation Corp.

25 A.D.2d 829, 269 N.Y.S.2d 671, 1966 N.Y. App. Div. LEXIS 4297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1966
• Status: Published

Opinion

Order, entered July 29, 1965 and order, entered October 18, 1965, unanimously reversed and vacated, on the law, on the facts and in the exercise of discretion, with one bill of $30 costs and disbursements to defendants-appellants, and motion for a special preference denied, with $10 costs. The decision of Special Term, as first released and published on July 30, 1965, stated that plaintiff’s motion for a preference was denied, noting: “ This cause has been denied a general preference, and in March, 1964, this Court denied an identical application as herein. Nothing subsequently new has been added to this submission to warrant a different result.” This was a correct and proper determination of the present motion for a preference; there was no proper showing of a change in circumstances or additional information warranting the overruling a Justice of co-ordinate jurisdiction in the prior determination denying both a general preference and special preference. (Cf. Lee v. Lehrer, 3 A D 2d 702; Ivory v. Widaben Realty Corp., 5 A D 2d 266; Carlos v. MV AIC, 22 A D 2d 866.) Consequently, there was no justification for the signing and entry of the order' herein (order, entered July 29, 1965), which, contrary to Special Term’s decision as published, provided for the granting of the preference; nor for the rendition on reargument, of the order (order, entered Oct. 18, 1965) which, without statement of reasons, adhered to the granting of the preference contrary to the Justice’s published decision.

-Concur — Rabin, J. P., McNally, Stevens and Eager, JJ.