Opinion
April 6, 1970
In a negligence action to recover damages for personal injuries, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County, dated September 19, 1969, as, upon reconsideration, adhered to the original decision denying a general preference in trial. Order reversed insofar as appealed from, on the law and the facts, with $10 costs and disbursements, and plaintiff's application for a general preference in trial granted. In our opinion, the view of the court-appointed impartial physician convincingly supplemented the claim of plaintiff's private doctors that plaintiff had sustained at least a permanent partial disability in the nature of recurrent low back aches and that this injury was proximately caused by the accident upon which the action is based. Though defendants' medical proof disputed that conclusion, such dispute should not be resolved in advance of trial and, under the circumstances, plaintiff's claim of continuing injury should be tried out in the Supreme Court where adequate damages may be granted if the triers of the fact believe plaintiff ( Koblein v. City of New York, 30 A.D.2d 965; Kahane v. Meehan, 24 A.D.2d 768). Christ, Acting P.J., Rabin, Hopkins and Brennan, JJ., concur; (Beldock, P.J., deceased.)