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ANN J. NOBLE v. PETER G. KOWALENKO ET AL. (05/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


May 16, 1969

ANN J. NOBLE, AN INFANT, BY DANIEL V. NOBLE, INDIVIDUALLY AND AS PARENT, ET AL., RESPONDENTS,
v.
PETER G. KOWALENKO ET AL., APPELLANTS (AND 3 OTHER ACTIONS.)

Reynolds, J. Gibson, P. J., Reynolds, Aulisi, Staley, Jr., and Greenblott, JJ., concur in memorandum by Reynolds, J.

Author: Reynolds

Appeal from an order, Supreme Court, Ulster County, granting plaintiffs-respondents' motion for a severance upon ground that it would be prejudicial to the rights of the infant plaintiff to be compelled to proceed to trial (CPLR 603). In support of the motion plaintiffs-respondents introduced an affidavit from an orthopedic specialist, in which he stated that while most of the infant plaintiff's injuries had responded to treatment, aseptic necrosis had developed, that there was a possibility that further surgery might be necessary, and that six months to a year would be required before the nature and extent of the permanent disability could be determined. In light of this uncontested affidavit and additionally in view of the fact that the order granting consolidation specifically granted leave to the infant plaintiff-respondent herein to apply for severance when the actions were reached for trial if the right of the infant would be prejudiced, we find no basis to disturb the discretion of Special Term in granting the instant motion.

Disposition

Order affirmed, with costs.

19690516

© 1998 VersusLaw Inc.



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