Opinion
March 23, 1964
In a negligence action to recover damages for personal injury sustained by the female plaintiff when the automobile in which she was a passenger fell into an excavation at the site of a building project, in which action the defendant Arcola Plumbing and Heating, Inc., a subcontractor, asserted a cross complaint for judgment over against defendant Redhill Associates, Inc., the general contractor, and against Berri Construction Co., the excavation subcontractor, the defendants Arcola and Berri appeal from an order of the Supreme Court, Queens County, made October 17, 1963 after a pretrial conference, which granted plaintiffs a preference in trial because of a failure of co-operation on the part of the defendant Arcola with respect to the settlement of the action. Order reversed on the facts, without costs, and preference vacated. The stenographic transcript of the minutes of the pretrial conference does not show adequate justification for the finding, upon which the order rests, that the defendant Arcola, by itself, should have attempted in good faith to adjust the action with the plaintiffs. In view of the allegations in Arcola's cross complaint against the defendants Redhill and Berri, it cannot be said at this time that they have no responsibility to contribute to any settlement. Under the circumstances, it was an improvident exercise of discretion to accord a preference in trial to this action. Beldock, P.J., Ughetta, Kleinfeld, Christ and Rabin, JJ., concur.