I dissent because it was premature to have granted defendant’s motion to dismiss the complaint prior to amplification of it by appropriate disclosure proceedings, which should be permitted. In reading the pleadings in a light most favorable to the plaintiff, as we must on a motion to dismiss it, it seems clear that a charge against plaintiff Banach of a negligent act identifiable in space and time could properly be spelled out in a bill of particulars. Such an alleged negligent act, if proven, brings this case squarely within the determination of this court in Berger Bros. Elec. Motors v. New Amsterdam Cas. Co. (267 App. Div. 333). Thus, the judgment should be reversed and defendant’s motion denied.
*353Wither and Mo'ule, JJ., concur with Gabrielli, J.; Goldman, P. J., not participating; Cardamons, J., dissents and votes to reverse and deny the motion in a memorandum.
Order affirmed, without costs.