Mannina v. Quilas , 152 N.Y.S.2d 379 ( 1956 )

Action by appellant Mannina to recover damages for personal injuries and by appellant Aseoli to recover damages for injuries to person and property alleged to have been sustained as the result of a collision between a motor vehicle owned and operated by appellant Aseoli, in which appellant Mannina was a passenger, and a motor vehicle owned and operated by respondent. On or about April 6, 1955, appellants’ motion for a preference, pursuant to rule 151 of the Rules of Civil Practice, was denied. The appeal is from an order dated January 17, 1956, denying appellants’ motion for reconsideration on additional papers. The order appealed from is considered as one not only denying the motion for reconsideration but also adhering to the original decision denying the motion for a preference. Order dated January 17, 1956, reversed, with $10 costs and disbursements, motion for reconsideration granted and on such reconsideration motion for a preference granted. Appellant Mannina is 68 years old. The affidavit of her doctor on the motion for reconsideration states that her physical condition, because of a brain injury, will become progressively worse and that her survival until the time of the trial is not likely. While respondent has had two physical examinations of said appellant, no affidavit of any doctor was submitted. Thus, the statement of said appellant’s doctor as to her physical condition was not controverted. Under the circumstances, a provident exercise of discretion requires the granting of the motion for reconsideration, and on such reconsideration, the granting of the motion for the preference. Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.