Opinion
April 27, 1981
In a wrongful death action predicated upon medical malpractice, defendant Banad N. Viswanath appeals from an order of the Supreme Court, Kings County, dated February 11, 1980, which (1) denied his motion for summary judgment dismissing the complaint for failure to comply with an order of preclusion, upon condition that plaintiff's attorney pay to said defendant $40 costs, and (2) in effect, granted plaintiff's cross motion to the extent of relieving him of his default and granting him leave to serve a bill of particulars. Order reversed, on the law, without costs or disbursements, appellant's motion for summary judgment dismissing the complaint is granted unconditionally and the cross motion is denied. In his opposition to appellant's motion, the plaintiff failed to demonstrate a reasonable excuse for (1) his failure to comply with an order of preclusion for a period of more than five months and (2) his failure to establish the legal merits of his claim by an affidavit containing a showing of evidentiary facts by a physician competent to attest to the meritorious nature of his cause of action. Accordingly, it was an abuse of the court's discretion to have denied the appellant's motion (see Barasch v Micucci, 49 N.Y.2d 594; Sussman v Franklin Gen. Hosp., 77 A.D.2d 567; Kahn v New York Univ. Med. Center, 60 A.D.2d 862). Damiani, J.P., Mangano, Gibbons and Gulotta, JJ., concur.