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ENGEL v. LICHTERMAN

95 A.D.2d 536 (1983)

Jordan Engel, an Infant, et al., Respondents, v. Jacob J. Lichterman, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 17, 1983

Attorney(s) appearing for the Case

Martin, Clearwater & Bell (Jay W. Levy of counsel), for appellant.

John Anthony Bonina & Associates, P. C. (Charles H. Dobkin of counsel), for respondents.

GULOTTA and BROWN, JJ., concur in the opinion of MANGANO, J.; GIBBONS, J., concurs to the extent of voting to reverse the order insofar as appealed from, but dissents to the extent of voting to remit the matter to the Supreme Court, Kings County, for a hearing, with an opinion, in which LAZER, J. P., concurs.

MANGANO, J.

In this medical malpractice action, the defendant moved for summary judgment based on plaintiffs' failure to comply with a conditional order of preclusion which was entered on consent. Annexed to defendant's moving papers was a verified affidavit of service by mail of said order with notice of entry which correctly designated the address of plaintiffs' attorney. In an opposing affidavit, plaintiffs' attorney stated that he never received the...

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