Noble v. Kowalenko

32 A.D.2d 703, 299 N.Y.S.2d 889, 1969 N.Y. App. Div. LEXIS 3972

Opinion

Reynolds, J.

Appeal from an order, Supreme Court, Ulster County, granting plain tiff s-respondents’ motion for a severance upon ground that it would be prejudicial to the rights of the infant plaintiff to be compelled to proceed to trial (CPLR 603). In support of the motion plaintiffs-respondents introduced an affidavit from an orthopedic specialist, in which he stated that while most of the infant plaintiff’s injuries had responded to treatment, aseptic necrosis had developed, that there was a possibility that further surgery might be necessary, and that six months to a year would be required before the nature and extent of the permanent disability could be determined. In light of this uncontested affidavit and additionally in view of the fact that the order granting consolidation specifically granted leave to the infant plain tiff-respondent herein to apply for severance when the actions were reached for trial if the right of the infant would be prejudiced, we find no basis to disturb the discretion of Special Term in granting the instant motion. Order affirmed, with costs. Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Greenblott, JJ., concur in memorandum by Reynolds, J.