Opinion
October 8, 1968
Order entered September 27, 1967, denying plaintiffs' motion for reconsideration of a previous denial of a general trial preference under rule IX of the Supreme Court Rules for New York and Bronx Counties, unanimously reversed on the law, the facts and in the exercise of discretion, and the motion is granted, without costs or disbursements to either party. While the injuries of plaintiff Ann Martin do not warrant a preference, plaintiff Alfred Martin alleges special damages in excess of $2,800. Additionally, plaintiff Alfred Martin alleges that he suffers from a herniated disc caused by or causally related to the accident, and he proffers a medical report in support of his contention. Though such claim is disputed, that fact alone would not warrant a denial for the disputed question cannot be determined in advance of trial (see Squillante v. Los Cab Corp., 19 A.D.2d 817; Hocherman v. I. G. Serv. Corp., 5 A.D.2d 813). Plaintiff Alfred Martin was age 58 at the time of the accident and is a barber. He may be able arguably to justify a recovery in excess of $10,000, the jurisdictional limit of the Civil Court, and the preference should have been granted.
Concur — Botein, P.J., Stevens, Eager, Capozzoli and Macken, JJ.