Appeal by the third-party plaintiffs, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County, dated June 28, 1966, as dismissed the third-party complaint after a jury trial. Judgment reversed on the law, and a new trial ordered, with costs to abide the event. No questions of fact have been considered. James Glass and Elizabeth Glass, the third-party plaintiffs, were sued by Daisy Cannon, the plaintiff, to recover for injuries sustained when she was struck in an automobile accident. Nyack Hospital, where the plaintiff was treated, was sued as a third-party defendant by the third-party plaintiffs, on the theory that the plaintiff was caused injury through its negligence (cf. Musco v. Conte, 22 A.D.2d 121). At the trial the third-party plaintiffs called a physician as an expert witness to testify as to the duty of the third-party defendant to install sideboards on the plaintiff's bed upon her admission, and as to the hospital and X-ray records tending to show that the plaintiff's leg had been injured while the plaintiff was hospitalized. This testimony was excluded after objection by the third-party defendant, on the ground that rules II, III and VIII of Part Four of the rules of this court bar such evidence. In our opinion, the exclusion of the testimony was error. The cited rules prescribe the procedure to be followed with respect to physical examinations and the service of medical reports of physicians "who have previously treated or examined the party seeking recovery" (Appellate Division Rules, Second Dept. part 4, rule II, subd. [a]). If the medical reports are not made available in compliance with the rules, "evidence of injuries or conditions not set forth or put in issue in the respective medical reports previously exchanged" shall not be permitted (Appellate Division Rules, Second Dept., part 4, rule VIII). Here, however, the physician whose testimony was offered was not a treating or examining physician. He had never treated or examined the plaintiff; his testimony was directed toward the expression of an expert opinion. The proffered expert testimony, under the circumstances of this case, does not fall within the purview of the rules, and a new trial must, therefore, be granted. Ughetta, Acting P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.