Opinion
April 13, 1972
Motion for reargument and for modification granted to the following extent. The plaintiffs, in the exercise of discretion and in the interests of justice, shall be granted a preference upon the filing of a proper note of issue and the payment of necessary fees. Excerpts from affidavits not hitherto available indicate that defendant has taken the position that the blasting operations caused some damage to plaintiffs' properties. ( Sullivan v. Ganios, 31 A.D.2d 527; Rasner v. Golden Skillet of N.Y., 33 A.D.2d 679; Matter of Smith v. Hirsch, 34 A.D.2d 629.) The provision for costs is stricken and a provision for costs to abide the event substituted therefor. In view of the foregoing, that portion of the motion seeking leave to appeal to the Court of Appeals is denied.
Concur — Kupferman, J.P., Murphy, McNally, Steuer and Tilzer, JJ.