Stentella v. Levin

In a negligence action to recover damages for personal and property injuries, defendant appeals from an order of the Supreme Court, Richmond County, entered December 29, 1965, which granted plaintiff’s motion for a preference in the trial pursuant to CPLR 3403. Order reversed, without costs, and motion denied. In our opinion, the granting of a preference under the circumstances here adduced constituted an improvident exercise of discretion. There was an inadequate showing of destitution; and plaintiff’s alleged physical incapacity is not such as to render him incapable of engaging in any form of income-producing activity.

Beldoek, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.