Pezone v. Amadio

Appellate Division of the Supreme Court of New York

Pezone v. Amadio

28 A.D.2d 674, 282 N.Y.S.2d 653, 1967 N.Y. App. Div. LEXIS 3735

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 27, 1967

StatusPublished

This text of 28 A.D.2d 674 (Pezone v. Amadio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pezone v. Amadio, 28 A.D.2d 674, 282 N.Y.S.2d 653, 1967 N.Y. App. Div. LEXIS 3735 (N.Y. Ct. App. 1967).

Pincite

Opinion

Concur — Stevens, J. P., Eager, Tilzer and Witmer, JJ.; Capozzoli, J., dissents in the following memorandum: Plaintiff’s motion for a general preference in this personal injury action was denied by the court below. Affidavits by two doctors were submitted in support of plaintiff’s motion, one, which was sworn to June 6, 1963, stated in part as follows: “ That as a result of this occurrence of accident Mr. Pezone sustained a fracture of the right fibula, fracture of the right malleolus, dislocation of the right talus, cerebral concussion, sprain of the left shoulder and wrist and contusions and abrasions of the left temporal area, left shoulder, left wrist and right leg. That my prognosis regarding Mr. Pezone’s recovery of these injuries is poor, -and the injury to hjs right lower extremity is of a permanent [675]*675nature.” The second medical affidavit, which was based on an examination of plaintiff made over four years after the accident, described the injuries in the following manner: “ Mr. Pezone has sustained a chronic traumatic osteo arthritis of the right ankle joint, secondary to fracture and dislocation thereof, which condition causes him severe pain and limitation of motion, and it is accompanied by a partial destruction of the bones, joint-capsule and cartilage of the right ankle with loss of strength of the muscles, disturbance of blood supply and relaxation of the ligaments. This condition is permanent in nature mid will become progressively worse as time goes on, and in addition, the osteoarthritic process will increase and therefore increase Mr. Pezone’s pain and suffering. The cause of the said condition was the improper healing of the dislocation and fracture of the right ankle, causing the ankle mortise to be asymetrical in shape and narrowing of the joint space.” (Emphasis added.) Under the circumstances, I believe that the denial of the motion was an abuse of discretion and, accordingly, I dissent and vote for a reversal.

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Concur — Stevens, J. P., Eager, Tilzer and Witmer, JJ.; Capozzoli, J., dissents in the following memorandum: Plaintiff’s motion for a general preference in this personal injury action was denied by the court below. Affidavits by two doctors were submitted in support of plaintiff’s motion, one, which was sworn to June 6, 1963, stated in part as follows: “ That as a result of this occurrence of accident Mr. Pezone sustained a fracture of the right fibula, fracture of the right malleolus, dislocation of the right talus, cerebral concussion, sprain of the left shoulder and wrist and contusions and abrasions of the left temporal area, left shoulder, left wrist and right leg. That my prognosis regarding Mr. Pezone’s recovery of these injuries is poor, -and the injury to hjs right lower extremity is of a permanent [675]*675nature.” The second medical affidavit, which was based on an examination of plaintiff made over four years after the accident, described the injuries in the following manner: “ Mr. Pezone has sustained a chronic traumatic osteo arthritis of the right ankle joint, secondary to fracture and dislocation thereof, which condition causes him severe pain and limitation of motion, and it is accompanied by a partial destruction of the bones, joint-capsule and cartilage of the right ankle with loss of strength of the muscles, disturbance of blood supply and relaxation of the ligaments. This condition is permanent in nature mid will become progressively worse as time goes on, and in addition, the osteoarthritic process will increase and therefore increase Mr. Pezone’s pain and suffering. The cause of the said condition was the improper healing of the dislocation and fracture of the right ankle, causing the ankle mortise to be asymetrical in shape and narrowing of the joint space.” (Emphasis added.) Under the circumstances, I believe that the denial of the motion was an abuse of discretion and, accordingly, I dissent and vote for a reversal.

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Bluebook (online)

28 A.D.2d 674, 282 N.Y.S.2d 653, 1967 N.Y. App. Div. LEXIS 3735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pezone-v-amadio-nyappdiv-1967.