Opinion
June 30, 1969
In a negligence action to recover damages for personal injury, loss of services and medical expenses, defendants appeal from an order of the Supreme Court, Kings County, dated December 11, 1968, which, after a pretrial hearing, accorded the action a trial preference. Order reversed, on the law and the facts, without costs, and without prejudice to any future application by plaintiffs for a preference. Absent a factual showing as a predicate for the finding that defendants failed to and did not want to co-operate in negotiating a settlement, it was an improvident exercise of discretion to direct the preference ( Marcus v. Schwartz, 26 A.D.2d 943); in our opinion under the facts presented herein, since defendants' attorney advised the court that plaintiffs' settlement demand was within the policy coverage, his subsequent refusal to divulge the limits of such coverage was not sufficient basis for holding that defendants failed to co-operate and did not want to co-operate with the court in settling the action (cf. Stashin v. City of New York, 22 A.D.2d 685). Christ, Acting P.J., Brennan, Hopkins, Munder and Kleinfeld, JJ., concur.