Opinion
June 27, 1967
Order of November 18, 1966 denying plaintiff's motion for a general preference affirmed, with $30 costs and disbursements to the defendant. A previous application by the plaintiff for a general preference in this case was denied, the court giving him leave to renew the motion on a showing of his damages, including his inability to work and loss of income. The plaintiff has failed to supply a material part of the suggested information. His bill of particulars shows medical expenses of $471.02. He worked for a relative, and he has supplied no affidavit as to the length of time he was prevented by his injuries from resuming his employment or as to his inability to work. Thus, he has not shown that he will be prejudiced by removal of this case to the Civil Court.
Plaintiff's motion for a general preference in this personal injury action was denied by the court below. Affidavits by two doctors were submitted in support of plaintiff's motion, one, which was sworn to June 6, 1963, stated in part as follows: "That as a result of this occurrence of accident Mr. Pezone sustained a fracture of the right fibula, fracture of the right malleolus, dislocation of the right talus, cerebral concussion, sprain of the left shoulder and wrist and contusions and abrasions of the left temporal area, left shoulder, left wrist and right leg. That my prognosis regarding Mr. Pezone's recovery of these injuries is poor, and the injury to his right lower extremity is of a permanent nature." The second medical affidavit, which was based on an examination of plaintiff made over four years after the accident, described the injuries in the following manner: "Mr. Pezone has sustained a chronic traumatic osteo arthritis of the right ankle joint, secondary to fracture and dislocation thereof, which condition causes him severe pain and limitation of motion, and it is accompanied by a partial destruction of the bones, joint capsule and cartilage of the right ankle with loss of strength of the muscles, disturbance of blood supply and relaxation of the ligaments. This condition is permanent in nature and will become progressively worse as time goes on, and in addition, the osteoarthritic process will increase and therefore increase Mr. Pezone's pain and suffering. The cause of the said condition was the improper healing of the dislocation and fracture of the right ankle, causing the ankle mortise to be asymetrical in shape and narrowing of the joint space." (Emphasis added.) Under the circumstances, I believe that the denial of the motion was an abuse of discretion and, accordingly, I dissent and vote for a reversal.