Marcus v. Schwartz — 26 A.D.2d 943

Majority

p. 943

Jo-Anne G. Marcus, an Infant, by Abraham Gold, Her Guardian ad Litem, Respondent, v. Max Schwartz, Defendant, and Leo Himmelstein et al., Appellants.

In a negligence action to recover damages for personal and property injuries, defendants Himmelstein and Levitz appeal from an order of the Supreme Court, Kings County, entered June 20, 1966, which, after a pretrial hearing, accorded the action a trial preference pursuant to rule 8 of the Rules of the Supreme Court, Kings County. Order reversed, without costs, and without prejudice to any future application by plaintiff for a preference. Absent a factual showing as a predicate for the finding of bad faith in negotiating a settlement, it was an improvident exercise of discretion to direct the preference (cf. Abramson v. Kenwood Labs., 17 A D 2d 626 ; Jones v. Otis Elevator Co., 24 A D 2d 451 ). Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.