Opinion
January 28, 1971
Order, Supreme Court, Bronx County, entered on August 27, 1970, granting special preference pursuant to CPLR 3403, unanimously reversed on the facts and the law, without costs and without disbursements, and plaintiff's motion denied, with leave to plaintiff to apply for the same relief on proper papers. Plaintiff, an infant, was severely injured in an accident. The infant's family was, before the accident, and is now, recipient of welfare aid. On a prior application Special Term pointed out that any recovery received by the infant would not be available to the family and could not affect its status as welfare recipients. The application was properly denied ( Nazario v. Martha Cab Corp., 41 Misc.2d 1010; Harvin v. Chiusano, 52 Misc.2d 836). Pursuant to permission, this application was made on a different basis, namely, that rehabilitation thereapy available in city hospitals would not be as effective as that afforded by the Institute of Rehabilitation Medicine, generally known as the Rusk Institute. A brochure of this institution is submitted. The purpose of the preference is to enable the infant plaintiff to have the funds to meet the charges of this institution at the earliest possible date. While this is a proper ground for granting a special preference, the proof presented on the application was insufficient. The doctor whose affidavits were submitted in both applications stated on the original application: "The probabilities of significant improvement is very small." The brochure of the Rusk Institute states that patients will be accepted only if staff determines that the applicant is feasible for admission; that is, that rehabilitation procedures will be of material assistance. In view of the doctor's prognosis, very serious doubt is cast upon the likelihood of the Institute's undertaking any cure. In addition, plaintiff's doctor is very careful not to say that the current treatment afforded the infant in a city hospital is not adequate, but merely that the Rusk Institute might do better. It would be incumbent on plaintiff to show that the Institute would accept him and that it concurs in the belief that its therapy is more likely to prove of assistance. Upon such a showing the application may be renewed.
Concur — Markewich, J.P., Kupferman, McNally, Steuer and Macken, JJ.