Opinion
May 9, 1988
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the order is modified, on the law, by deleting therefrom the provision granting the renewed motion and substituting therefor a provision denying the renewed motion; as so modified, the order is affirmed, without costs or disbursements, on condition that the plaintiff appear for a further examination before trial at a time and place to be specified in a notice of not less than 10 days to be given by the defendant, which examination shall be held within 60 days after the date of this decision and order, and it is further,
Ordered that in the event the condition is not complied with, then the order is reversed, on the law, with costs, the motion is denied and the defendant's cross motion is granted.
The plaintiff failed to establish by evidentiary proof in admissible form that no triable issue of fact exists as to whether the defendant's conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his profession (see, Drab v Baum, 114 A.D.2d 992; Grago v Robertson, 49 A.D.2d 645). Thus, the court erred in granting the plaintiff's renewed motion for summary judgment.
However, the court did not err in denying the defendant's cross motion to dismiss the complaint on the basis that the plaintiff failed to appear for a court-ordered examination before trial. The defendant failed to establish that this drastic remedy is warranted under the circumstances (see, Mancusi v Middlesex Ins. Co., 102 A.D.2d 846; Battaglia v Hofmeister, 100 A.D.2d 833). Thus, the plaintiff is hereby given an additional chance to comply with the direction that she submit to an oral deposition. Though the plaintiff did ultimately submit to an examination before trial, that examination was held after the court granted the plaintiff summary judgment, and presumably was limited to the issue of damages. Thompson, J.P., Kunzeman, Rubin and Harwood, JJ., concur.