Summary
finding that a physician's affirmation of an injury "is the equivalent of a `sworn' statement" and that this affirmation, coupled with the doctor's "own examination of the patient, as well as by reference to an objective diagnostic test" administered by another doctor and included elsewhere in the record was sufficient to defeat a summary judgment motion
Summary of this case from Davis v. OgandoOpinion
October 6, 1994
Appeal from the Supreme Court, New York County (Robert D. Lippmann, J.).
The record contains a professional's affirmation (CPLR 2106) by Dr. Melamed, one of plaintiff's treating physicians, which offers the opinion ("with a reasonable degree of medical certainty") that plaintiff's "injury to her lower back and the restriction of motion of her lower back is permanent in nature." This affirmation is the equivalent of a "sworn" statement, and the opinion therein is supported by Dr. Melamed's own examination of the patient, as well as by reference to an objective diagnostic test conducted by Dr. Suarez, which is reported by the latter elsewhere in the record (see, Braham v. U-Haul Co., 195 A.D.2d 277, 278). This should have been sufficient to defeat defendants' motion for summary judgment.
Motion insofar as it seeks reargument is granted, and upon reargument the prior unpublished decision and order of this Court entered on August 11, 1994 (Appeal No. 52226) is recalled and vacated, and a new memorandum substituted therefor.
Concur — Murphy, P.J., Wallach, Ross, Rubin and Williams, JJ.