Clarke v. Sharp Trading Corp.

New York Supreme Court

Clarke v. Sharp Trading Corp.

19 Misc. 2d 555, 196 N.Y.S.2d 134, 1959 N.Y. Misc. LEXIS 2701

DecidedNovember 4, 1959

StatusPublished

This text of 19 Misc. 2d 555 (Clarke v. Sharp Trading Corp.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clarke v. Sharp Trading Corp., 19 Misc. 2d 555, 196 N.Y.S.2d 134, 1959 N.Y. Misc. LEXIS 2701 (N.Y. Super. Ct. 1959).

Pincite

Opinion

Mario Pittoni, J.

Motion for a preference is denied.

The cause of action arises out of the plaintiff’s fall caused by tripping over a defective carpet runner in a hotel.

The plaintiff, a woman 40 years of age, was- suffering from a heart condition prior to the fall. The physician’s affidavit says that this “ previous heart abnormality was aggravated by the fall ”; and also that she “ may not * * * be alive in the event that this case should proceed to trial at a later date ”. Thus he does not say affirmatively that the plaintiff is in imminent danger of death in the near future. It has been held that ‘ ‘ There must be * * * an unreserved and unequivocal affidavit by a physician and * * * the opinion of the physician must be supported by credible medical facts ”. (Dodumoff v. Lyons, 4 A D 2d 626, 627 [1st Dept.].) And further, “ There is no persuasive showing of * * * probability of death before trial in the regular order; and the granting of the motion was an improvident exercise of discretion”. [O’Callaghan v. Brawley, 276 App. Div. 908 [2d Dept.].)

Therefore, the plaintiff has failed to establish facts entitling her to a preference.

Motion denied.

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Mario Pittoni, J.

Motion for a preference is denied.

The cause of action arises out of the plaintiff’s fall caused by tripping over a defective carpet runner in a hotel.

The plaintiff, a woman 40 years of age, was- suffering from a heart condition prior to the fall. The physician’s affidavit says that this “ previous heart abnormality was aggravated by the fall ”; and also that she “ may not * * * be alive in the event that this case should proceed to trial at a later date ”. Thus he does not say affirmatively that the plaintiff is in imminent danger of death in the near future. It has been held that ‘ ‘ There must be * * * an unreserved and unequivocal affidavit by a physician and * * * the opinion of the physician must be supported by credible medical facts ”. (Dodumoff v. Lyons, 4 A D 2d 626, 627 [1st Dept.].) And further, “ There is no persuasive showing of * * * probability of death before trial in the regular order; and the granting of the motion was an improvident exercise of discretion”. [O’Callaghan v. Brawley, 276 App. Div. 908 [2d Dept.].)

Therefore, the plaintiff has failed to establish facts entitling her to a preference.

Motion denied.

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Bluebook (online)

19 Misc. 2d 555, 196 N.Y.S.2d 134, 1959 N.Y. Misc. LEXIS 2701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-sharp-trading-corp-nysupct-1959.