Opinion
December 7, 1970
In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated June 17, 1970, which, upon plaintiff's oral motion at a pretrial conference, granted plaintiff a trial preference for a day certain, upon a finding that defendant was not negotiating in good faith for settlement of the case. Order reversed, with $10 costs and disbursements, and motion denied. The transcript of the argument on the motion does not support a finding that defendant was acting in bad faith in the negotiations. Defendant offered one quarter of its total liability insurance coverage in this case in which there is a genuine question as to the extent and permanency of plaintiff's injuries. Defendant offered to re-evaluate the case if a further physical examination were held. The offer was refused. Plaintiff failed in a motion for summary judgment on liability, which means there is a question of fact for the jury on this issue. A court cannot make a finding of bad faith under CPLR 3403 simply because it disagrees with the amount defendant has offered for settlement ( Moore v. Moore, 35 A.D.2d 818; Chomski v. Alston Cab Co., 32 A.D.2d 627; Mitchell v. Iowa Cab Co., 31 A.D.2d 519; Binninger v. Grillo, 28 A.D.2d 1100). Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.