(dissenting). I would reverse and remand for a new trial on the issue of damages.
The facts here track those found by this court to be reversible error in Kastner v Rodriquez (91 AD2d 950). The permanency of the injuries sustained by this plaintiff-respondent was the pivotal issue on the trial. A medical witness, Dr. Parnés, testified for plaintiff, and a private investigator was called by defendant to show motion pictures to belie permanency. Defendant contends Dr. Parnés’ testimony was improperly admitted. The doctor had examined plaintiff a few days prior to testifying, but there was no compliance with the medical exchange rule, 22 NYCRR 660.11 (h). Plaintiff’s counsel limited his inquiry of the doctor to hypothetical questions. The doctor insisted that his opinions were derived solely from the hospital records. He denied that his examination of plaintiff, made before he had seen the records, contributed in any degree to his opinion despite his having answered the question “Then why did you examine Mr. Rivera?”, with “I examined Mr. Rivera to find out what he had”, and despite no claim of permanency in the records. I repeat what this court held in Kastner (pp 950-951): “It is difficult to perceive how a doctor can divorce his or her answers to hypothetical questions from the medical examination performed on the plaintiff notwithstanding that doctor’s possible claim to the contrary. At any rate, the mandate of 22 NYCRR 660.11 (h) is clear. The plaintiff may not circumvent imposition of the penalty authorized by the medical exchange rule for failure to comply therewith by the strategem of substituting questions characterized as ‘hypothetical’.”
By its own terms the rule’s requirement of medical report exchange may be avoided by the trial court “in the interests of justice”, “upon a showing of good cause”. The trial court found neither here. Nor could it have done so. Plaintiff’s only claim for admission of the testimony, and the court’s basis for admitting it, was that it derived solely from hypothetical questions. Maybe so, but if true, admission on that ground is forbidden by Kastner (supra).
*337Sandler, J. P., Asch and Milonas, JJ., concur with Fein, J.; Lynch, J., dissents in an opinion.
Judgment, Supreme Court, Bronx County, entered on June 14, 1983, affirmed, without costs and without disbursements.