
    Mary Robarge, Respondent, v Ivan Gerhath, Appellant.
   In anaction to recover damages for medical malpractice, assault and battery, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated October 15, 1979, as granted that branch of plaintiff’s motion which was for summary judgment as to liability on the causes of action for assault and battery. Order reversed insofar as appealed from, and plaintiffs motion is denied in its entirety, without costs or disbursements. Summary judgment was granted on the basis of the collateral estoppel effect of the criminal conviction of the defendant doctor of attempted assault in the third degree. In view of this court’s reversal of the conviction (People v Gerhath, 77 AD2d 628), summary judgment should not be granted. Mollen, P. J., Gibbons, Martuscello and Weinstein, JJ., concur.  