Dietrich v Puff Cab Corp., 2009 NY Slip Op 04853 (App. Div., 2nd, 2009)
In opposition, the plaintiffs raised a triable issue of fact by the
submission of the reports of Dr. William Buchmann. Dr. Buchmann's
reports demonstrated that Dietrich's range of motion in her cervical
spine was significantly limited, when read in conjunction with the
report of the defendants' expert, Dr. Mesh. Dr. Mesh's report had set
forth the applicable normal ranges of motion against which Dr.
Buchmann's findings could be compared. A statement by an expert that is
put forward by a party in litigation constitutes an informal judicial
admission (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189, 192; Matter of City of New York,
73 AD2d 932, 933) that is admissible against, although not binding
upon, the party that submitted it. Thus, just as a nonmoving plaintiff
in a serious injury case may rely upon the unsworn report of the
plaintiff's treating physician once it has been submitted by the moving
defendant (see Pagano v Kingsbury, 182 AD2d 268), a nonmoving
plaintiff may also rely upon the statement by the moving defendant's
expert of the normal range of motion (see Djetoumani v Transit, Inc., 50 AD3d 944, 946).
The bold is mine.
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