Hopkins v. Ratzan (83 A.D.2d 624, 1981)

In a medical malpractice action, defendant appeals from an order of the Supreme Court, Suffolk County (Murphy, J.), dated October 28,1980, which, inter alia, denied his motion to dismiss the complaint based on the plaintiff’s failure to comply with a conditional order of preclusion directing the service of a bill of particulars. Order affirmed, with $50 costs and disbursements. No opinion, Cohalan, Margett and O’Connor, JJ., concur.

Mangano, J.P., and Bracken, J.,

dissent and vote to reverse the order and grant the defendant’s motion, with the following memorandum: In the absence of a showing of merit and a reasonable excuse for the delay, it was error for Special Term to deny the defendant’s motion (see Barasch v Micucci, 49 NY2d 594).