Opinion
November 30, 1970
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County, dated April 9, 1970, as, on reargument and reconsideration, adhered to the original determination denying plaintiffs' application for a general preference. Order reversed insofar as appealed from, with $10 costs and disbursements, and plaintiffs' application for a general preference granted. In our opinion, though defendants' medical proof disputed the medical proof furnished by plaintiffs that plaintiff Margaret Wensdofer had incurred a permanent and partial disability, the dispute between the medical opinions offered should not have been resolved, in advance of the trial and, under the circumstances, plaintiffs' 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 plaintiffs' version ( Jay v. Glassman, 34 A.D.2d 647; Lyons v. B J. Auto Spring Equip. Co., 35 A.D.2d 739). Rabin, Acting P.J., Hopkins, Martuscello, Brennan and Benjamin, JJ., concur.