Cabibi v. Lundrigan

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an [557] order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 2002, as denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court correctly denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release (see Mangini v McClurg, 24 NY2d 556 [1969]; Haynes v Garez, 304 AD2d 714 [2003]; Curry v Episcopal Health Servs., 248 AD2d 662 [1998]; Carola v NKO Contr. Corp., 205 AD2d 931 [1994]; Horn v Timmons, 180 AD2d 717 [1992]). There are questions of fact as to whether the release was “fairly and knowingly” made regarding the injuries at issue in this case. Further, given the plaintiffs “later-discovered need for surgery, there are questions of fact as to whether there was a mutual mistake concerning such injuries” (Haynes v Garez, supra at 715; see Mangini v McClurg, supra). Prudenti, P.J., Ritter, H. Miller and Crane, JJ., concur.