
    Fred Di Puma et al., Respondents, v Manhattan Eye, Ear, Nose and Throat Hospital, Appellant, et al., Defendant.
   Order, Supreme Court, New York County (Gammerman, J.), entered March 24; 1982, granting the motion of defendant Manhattan Eye, Ear, Nose and Throat Hospital to reinstate its answer, and determining that defendant is deemed to have waived a medical malpractice panel, is reversed, on the law and the facts, and in the exercise of discretion, so far as appealed from, and the last two sentences of said order are stricken, without costs. Defendant’s attorney failed to appear at a conference scheduled to be held before Justice Gammerman on February 17, 1982. Defendant was notified of this within a day or two after the default and immediately moved to vacate the default. The default was inadvertent. As it does not appear from the record that the February 17, 1982 conference was a date set for a hearing before a medical malpractice panel, and the motion to vacate the default was made immediately, the default should have been excused without condition. Nothing in the record supports the court below’s determination that by reason of the defendant’s default, defendant is deemed to have waived a section 148-a of the Judiciary Law panel. Concur — Sullivan, Silverman, Asch and Milonas, JJ.

Kupferman, J. P.,

dissents in a memorandum as follows: I dissent on the dissenting opinion of Silverman, J., in Rosa v Kulkarni (89 AD2d 529).  