Opinion
November 2, 1967
Order, entered April 5, 1967, advancing this personal injury action for trial, unanimously reversed and vacated, on the law and on the facts, and in the exercise of discretion, with $30 costs and disbursements to defendant. Although it appears that the plaintiff has a clear case on the liability issue, it may not be properly held on the basis of the record that the defendant's counsel acted in bad faith or unreasonably in his evaluation of the plaintiff's injuries and damages. A clear case of liability does not entitle plaintiff to have her action preferred for trial over other actions on the calendar; if there is no bona fide issue of fact bearing on the liability issue, the plaintiff's remedy is to move for summary judgment. "Failure to concur in what the Justice presiding [at pretrial] may consider an adequate settlement should not result in an imposition upon a litigant or his counsel, who reject it, of any retributive sanctions not specifically authorized by law. Whether such sanctions assume the form of the direction of unwarranted preferences * * * they merit and will meet with disapproval by this court." ( Wolff v. Laverne, Inc., 17 A.D.2d 213, 215.) Under the circumstances, however, this action may again be reviewed at pretrial with due consideration to be given to plaintiff's alleged facial disfigurement in accordance with her present appearance and condition and, in this connection, the matter may in the discretion of the court be referred to the impartial medical panel.
Concur — Stevens, J.P., Eager, Steuer, Tilzer and McNally, JJ.