Paige v. City of Buffalo

—Appeal from an order of Supreme Court, Erie County (Whelan, J.), entered September 7, 2001, which, inter alia, granted defendants’ cross motion and dismissed the complaint. It is hereby ordered that the order so appealed from be and the same hereby is modified on the law by denying defendants’ cross motion and reinstating the complaint and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when the vehicle that he was driving collided with a vehicle owned by defendant City of [1002] Buffalo and driven by defendant Louise T. Evans. Plaintiff sought medical treatment on the date of the accident for pain in his head and left leg, and he returned to the emergency room the following day, complaining of the same symptoms. Approximately one month after the accident and approximately one month prior to the diagnosis of a chronic subdural hematoma, plaintiff signed a full release for, inter alia, “all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof’ for consideration in the amount of $3,708.64. Supreme Court erred in granting defendants’ cross motion for summary judgment dismissing the complaint based on the release signed by plaintiff. Plaintiff’s neurosurgeon averred that the hematoma was “probably” caused by the accident and that the fluid in the hematoma accumulates gradually as a result of trauma. Thus, plaintiff has raised an issue of fact whether, at the time he signed the release, the parties knew that he was suffering from a subdural hematoma. Where the ultimate injury is a consequence or sequela of the known injury a release will be upheld (see Finklea v Heim, 262 AD2d 1056, 1057; see also Booth v 3669 Delaware, 242 AD2d 921, 922, affd 92 NY2d 934). Where, however, the presumed injury is “so different from that of the actual injury [that] it is not merely a matter of degree or severity,” the release may be set aside as signed under a mutual mistake of fact (Gibli v Kadosh, 279 AD2d 35, 39; see Curry v Episcopal Health Servs., 248 AD2d 662; Carola v NKO Contr. Corp., 205 AD2d 931). A release “is a jural act of high significance without which the settlement of disputes would be rendered all but impossible. It should never be converted into a starting point for renewed litigation except under circumstances and under rules which would render any other result a grave injustice. * * * Hence, the releasor * * * must sustain the burden of persuasion if he is to establish that the general language of the release, valid on its face and properly executed, is to be limited because of a mutual mistake” (Mangini v McClurg, 24 NY2d 556, 563; see also Gibli, 279 AD2d at 38; Carola, 205 AD2d at 932). In this case, we conclude that plaintiff has raised a triable issue of fact whether the release was signed under a mutual mistake of fact. We therefore modify the order by denying defendants’ cross motion and reinstating the complaint. All concur except Scudder, J., who dissents in part and votes to affirm in the following memorandum. Scudder, J.