SMITH v. SCHULMAN

Amended judgment of the Supreme Court, Suffolk County, dated November 15, 1965, affirmed, insofar as appealed from, without costs. Part 4 of the rules of this department respecting the exchange of medical information applies to exclude the testimony of examining and/or treating physicians whose medical reports have not been served as therein provided. However, the preparation of a medical report and the service thereof is not required of a physician who neither examined nor treated the deceased in a death action and who is being called upon as an expert witness to express an opinion based solely upon an examination of plaintiff's medical evidence as to a causal relationship with respect to an automobile collision, a physical condition and a death. Therefore, under those circumstances, a failure to serve such a medical report on an opponent would not preclude the testimony of the physician. Rabin, Acting P.J., Hopkins, Benjamin, Munder and Nolan, JJ., concur.