Opinion
November 14, 1960
In a negligence action, the defendants appeal from an order of the Supreme Court, Nassau County, dated April 27, 1960, granting plaintiffs' motion for a preference pursuant to subdivision 3 of rule 151 of the Rules of Civil Practice. Order reversed, with $10 costs and disbursements, and motion denied, with leave to plaintiffs, if so advised, to make a new application on competent medical proof based on a recent physical examination and a showing that there is a probability that one of the plaintiffs will not survive the period of time required for the action to be reached for trial in its regular order. Mere severity of injuries is insufficient to warrant the exercise of the court's discretion in granting a preference under this rule (Rules Civ. Prac., rule 151, subd. 3.) However, if there is a probability that one of the plaintiffs here will not survive the period of time required for the action to be reached for trial in its regular order, a new application may be made, based upon appropriate proof, as indicated above. Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.