Kennedy v. Jere J. Cronin, Inc.

33 A.D.2d 564, 305 N.Y.S.2d 671, 1969 N.Y. App. Div. LEXIS 3152

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1969
• Status: Published

Opinion

—In a negligence action to recover damages for personal injury, medical expenses, etc., plaintiffs appeal from an order of the Supreme Court, Kings County, dated September 3, 1968, which denied their motion for reconsideration of their application for a general preference and other relief. Order reversed, on the law and the facts, with $10 costs and disbursements, and motion granted in all respects, except that the action shall be. placed upon the Trial Calendar in the position to which it would have -been entitled had a general preference been granted' at Special Term on the motion for reconsideration, and accordingly the motion is denied insofar as it was for an immediate trial for a day certain; and the granting of the motion is on condition that a new physical examination of the injured plaintiff be accorded defendants. In our view it was an improvident exercise of discretion to deny the motion for reconsideration. No higher standard of medical proof should be required on an application of this kind than is required on a trial (McGrath v. Irving, 24 A D 2d 236, mot. for lv. to app. den. 17 N Y 2d 419; Matter of Benenati v. Tin Plate Lithographing Co., 29 A D 2d 805; Reich v. Evans, 7 A D 2d 765; CPLR 4515). Nor does the mere lapse of time between the denial of the initial application and the motion for reconsideration predicated upon allegedly newly discovered injuries constitute a procedural bar (Hegarty v. Railway Express Agency, 126 N. Y. S. 2d 107, affd. 282 App. Div. 871). Brennan, Acting P. J., Hopkins and Kleinfeld, JJ., concur; Benjamin and Munder, JJ., dissent and vote to affirm, on the opinion at Special Term.