Spiegler v. School Dist. of City of New Rochelle

• Decision Date: 23 August 1962
• Citation: 232 N.Y.S.2d 597,36 Misc.2d 312
• Parties: John SPIEGLER, individually and as Guardian ad Litem for Rosemary Spiegler, an infant, Plaintiffs, v. The SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE, the Board of Education of the School District of New Rochelle, the City of New Rochelle, New Rochelle Humane Society, Inc., and Robert Patterson, Defendants.
• Court: New York Supreme Court

Page 597

232 N.Y.S.2d 597

36 Misc.2d 312

John SPIEGLER, individually and as Guardian ad Litem for Rosemary Spiegler, an infant, Plaintiffs, v. The SCHOOL DISTRICT OF the CITY OF NEW ROCHELLE, the Board of Education of the School District of New Rochelle, the City of New Rochelle, New Rochelle Humane Society, Inc., and Robert Patterson, Defendants.

Supreme Court, Westchester County.

Aug. 23, 1962.

Jerome N. Wanshel, Larchmont, for plaintiffs.

Bodmer & Campbell, New Rochelle, for defendant, City of New Rochelle.

Donald A. Mead, White Plains, for defendants, School Dist. of the City of New Rochelle and the Bd. of Ed. of the School Dist. of New Rochelle.

Edward F. Sweeney, New York City, for defendant, New Rochelle Humane Society, Inc.

James A. Cassidy, New Rochelle, for defendant, Robert Patterson.

CLARE J. HOYT, Justice.

This is a negligence action in which the infant plaintiff, age 6 at the time of the incident complained of, was attacked by a dog and allegedly sustained grievous personal injuries.

The plaintiffs are now moving for a preference. In support of the motion affidavits have been submitted by the surgeon, psychiatrist and plastic surgeon who have attended the infant since the accident. The court has also been given the summons, verified complaint, copies of the answers and verified bill of particulars.

Recently, Mr. Justice Donohoe granted plaintiffs' motion to vacate notices of examination before trial of the infant plaintiff with leave to defendants to move for examinations before trial upon showing the materiality and necessity therefor prior to the time the action is to be tried. The defendants School District and Board of Education of the City of New Rochelle have now cross moved for an order granting the examination before trial of the infant plaintiff. The other defendants join in the granting of the cross motion.

A note of issue has not been filed in the action. With the adoption by the Appellate Division, Second Department of the Special Rule regulating the granting of preferences in trial of actions to recover damages for personal injuries resulting in permanent or protracted disability or to recover damages for causing death (added effective March 1, 1962) there now exist two types of preferences. The preference afforded by the Special Rule is absolutely conditioned upon the filing of a note of issue. Paragraph 3 of the Special Rules states, however that nothing contained in the Special Rule 'shall be deemed to preclude, limit or restrict any other or different application for a preference under and in accordance with applicable provisions, if any, of the Civil Practice Act or the Rules of Civil Practice'. The authority for the granting of a statutory preference is governed by Rule 151 of the Rules of Civil Practice which provides that 'preferences shall be obtained by applying therefor to the court or a judge thereof at the opening or during the term...