Denardo v. Brodsky , 195 N.Y.S.2d 880 ( 1959 )

On the court’s own motion the decision handed down November 30, 1959 {ante, p. 790) is amended to read as follows: In an action to recover damages for injuries to person and property, the appeal is from an order determining that a preference in trial pursuant to rule 9 of the Kings County Supreme Court Rules is not warranted and that adequate compensation for the claimed injuries may be obtained in the City Court of the City of New York. Order reversed, with $10 costs and disbursements, and a preference granted. Appellant’s physician stated that appellant had suffered a herniated intervertebral disc as a result of the accident. Respondent admitted at the pretrial hearing that if appellant had suffered that injury, which an ordinary physical examination would not disprove, appellant was entitled to the preference. In addition, appellant claimed special damages in excess of $3,500, that he was totally disabled for eight and a half months, that thereafter he was able to do only part-time light work with pain and difficulty, and in the performance of the said light work, he has been frequently and intermittently totally unable to perform such work. Under the circumstances, appellant was justified in refusing to submit to an examination by a physician to be designated by the court, the result of which would not be determinative of appellant’s right to the preference. {Hocherman V. I. & G. Service Corp., 5 A D 2d 813.) It should also be noted that respondent did not submit a brief to this court in an attempt to sustain the determination below. Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.