Opinion
December 19, 1986
Appeal from the Supreme Court, Chautauqua County, Kubiniec, J.
Present — Doerr, J.P., Green, Balio, Lawton and Schnepp, JJ.
Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: Special Term erred in granting summary judgment to the defendant doctor in this medical malpractice action. Although defendant, by expert opinion evidence, sought to establish his entitlement to summary judgment (cf. Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851), plaintiff sufficiently opposed the motion by alleging defendant admitted to him that defendant misread an X ray revealing that the bones in plaintiff's wrist had not fully healed. Such an admission of a party constitutes evidence in admissible form necessary to defeat a motion for summary judgment (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557; Richardson, Evidence § 209 [Prince 10th ed]; see also, Dictz v. Aronson, 244 App. Div. 746). Although defendant denied making the admission, this creates a triable issue of fact precluding summary judgment. Cases upon which defendant relies (e.g., Maust v. Arseneau, 116 A.D.2d 1012; Neuman v. Greenstein, 99 A.D.2d 1018; Pan v. Coburn, 95 A.D.2d 670; Himber v. Pfizer Labs., 82 A.D.2d 776, 777) did not involve an alleged admission by the defendant doctor and are they not controlling of the facts presented here.