Harris v. Brooklyn Hospital at the Brooklyn Cumberland Medical Center

— In a wrongful death action predicated upon medical malpractice, defendant Bañad 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 NY2d 594; Sussman v Franklin Gen. Hosp., 77 AD2d 567; Kahn v New York Univ. Med. Center, 60 AD2d 862). Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.