Addison v. New York City Transit Authority

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered February 24, 1994, which granted defendants’ motions for summary judgment, unanimously reversed, on the law, the motions are denied, and the complaint reinstated, without costs.

The record contains a professional’s affirmation (CPLR 2106) by Dr. Melamed, one of plaintiffs treating physicians, which offers the opinion ("with a reasonable degree of medical certainty”) that plaintiffs "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. Me-lamed’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 AD2d 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Motion insofar as it seeks reargument is granted, and upon reargument the prior unpublished decision and order of this Court entered on August 11, 1994 (Appeal No. 52226) is recalled and vacated, and a new memorandum substituted therefor.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.