Jean S. Hampton, Individually and as Administratrix CTA of the Estate of Mason L. Hampton, Jr., Deceased, Appellant, v. Mercy Hospital et al., Defendants, and John J. Rooney, Respondent

Jean S. Hampton, Individually and as Administratrix CTA of the Estate of Mason L. Hampton, Jr., Deceased, Appellant, v Mercy Hospital et al., Defendants, and John J. Rooney, Respondent. [MAJORITY] In a medical malpractice action, plaintiff appeals from an order of the Supreme Court, Nassau County, dated March 7, 1977, which granted defendant-respondent Rooney’s motion for summary judgment dismissing the action as against him on the ground that plaintiff failed to serve a bill of particulars within the time allotted by an order of preclusion and was therefore precluded from giving any evidence as to his "negligence and/or malpractice”. Order reversed, without costs or disbursements, and motion denied, upon condition that plaintiffs attorney personally pay respondent’s attorney the sum of $100 within 20 days after entry of the order to be made hereon; in the event that such condition is not complied with, order affirmed, without costs or disbursements (cf. Batista v St. Luke’s Hosp., 46 AD2d 806). Cohalan, J. P., Damiani, Rabin and Titone, JJ., concur.