Opinion
May 24, 1999
Appeal from the Supreme Court, Richmond County (SanGiorgio, J).
Ordered that the appeal from the order entered January 30, 1998, is dismissed, without costs or disbursements, as that order was superseded by the order dated November 13, 1998, made upon reargument; and it is further,
Ordered that the order dated November 13, 1998, is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly determined that hearsay testimony which violates the Dead Man's Statute (CPLR 4519) may be admitted for the purpose of opposing a motion for summary judgment ( see, Silvestri v. Iannone, 261 A.D.2d 387; Friedman v. Sills, 112 A.D.2d 343, 344). Based on such testimony and other evidence, the Supreme Court properly determined that issues of fact existed as to whether the decedent complained to the appellant about back pain, whether electrocardiograms were a routine part of annual examinations of the decedent or were performed as a result of such complaints, and whether the appellant examined the decedent competently.
Although the Supreme Court erred in taking judicial notice of an excerpt from a treatise which may or may not be applicable to this case, upon granting reargument, it properly adhered to its prior determination in light of the aforementioned issues of fact.
S. Miller, J. P., Sullivan, Friedmann, Luciano and Feuerstein, JJ., concur.