Opinion
November 30, 1959
In an action to recover damages for injuries to person and property, the appeal is from an order determining that a preference in trial pursuant to rule 9 of the Kings County Supreme Court Rules is not warranted and that adequate compensation for the claimed injuries may be obtained in the City Court of the City of New York. Order reversed, with $10 costs and disbursements, and a preference granted. Appellant's physician stated that appellant had suffered a herniated intervertebral disc as a result of the accident. Respondent admitted at the pretrial hearing that if appellant had suffered that injury, which an ordinary physical examination would not disprove, appellant was entitled to the preference. Under the circumstances, appellant was justified in refusing to submit to an examination by a physician to be designated by the court, the result of which would not be determinative of appellant's right to the preference. ( Hocherman v. I. G. Service Corp., 5 A.D.2d 813. ) Wenzel, Acting P.J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.