Eighth Judicial District Asbestos Litigation v. Hedman Resources, Ltd.

—Appeal from order insofar as it denied motion for summary judgment in action No. 2 unanimously dismissed upon stipulation and order affirmed without costs. Memorandum: In 1987 Ambrose D. Bille (plaintiff) and others commenced an action against Hedman Resources, Ltd. (defendant) and other manufacturers and distributors of asbestos products to recover damages for injuries allegedly sustained as the result of exposure to asbestos. In 1991 plaintiff settled that action with defendant and signed a general release. At the time the release was signed, plaintiff had been diagnosed with pleural disease. In 1998 he was diagnosed with mesothelioma. Following that diagnosis, plaintiff commenced the instant action, alleging that his present condition resulted from his exposure to asbestos and seeking to recover damages for that condition. Defendant moved for summary judgment dismissing the complaint against it on the ground that the general release signed by plaintiff bars him from instituting this action. Supreme Court properly denied the motion. “It is now well settled that in a personal injury case, a release may be set aside on the ground of mutual mistake if there is ‘a mistaken belief as to the nonexistence of an injury’ (Horn v Timmons, 180 AD2d 717, 718; see, Mangini v McClurg, 24 NY2d 556, 564)” (Carola v NKO Contr. Corp., 205 AD2d 931, 932). The court properly determined that “there are issues of fact both as to the parties’ knowledge of the injuries suffered, and their intention to release liability for unknown injuries” (Mangini v McClurg, supra, at 560). (Appeal from Order of Supreme Court, Erie County, Kane, J. — Summary Judgment.) Present — Green, J. P., Hayes, Hurlbutt and Kehoe, JJ.