Calanni v. Tranos

12 A.D.2d 762, 209 N.Y.S.2d 842, 1961 N.Y. App. Div. LEXIS 12940

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1961
• Status: Published

Opinion

. Order entered on April 21, 1960, granting motion for reconsideration but denying preference under subdivision 5 of rule IV of the Bronx County Supreme Court Trial Term Rules modified, on the law, on the facts, and in the exercise of discretion, to the extent of granting such preference and the order is otherwise affirmed, with $20 costs and disbursements to plaintiffs-appellants. Although plaintiffs, in this personal injury and property damage negligence action, have not established extensive special damages, their proof does establish, prima facie, a serious physical injury. In the absence of opposition by defendant or the presentation by defendant of any contradictory or qualifying medical evidence the preference should have been granted (Vallen v. Fifth Ave. Coach Corp., 5 A D 2d 769; Schlesinger v. Coleman, 285 App. Div. 804). Concur— Breitel, J. P., Rabin, Stevens and Elager, JJ.; McNally, J., dissents and votes to affirm. The appeal from the ex parte order, entered on or about December 2, 1959, is unanimously dismissed.