Opinion
No. 145 SSM 13.
Decided April 28, 2011.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered December 30, 2010. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Orleans County (James E Punch, J.), which had granted a motion by defendant for summary judgment dismissing the complaint.
Plaintiff commenced an action seeking damages for injuries she sustained in a motor vehicle accident. Prior to that time, however, plaintiff had signed a "Release of All Claims" in consideration of $1,039.82, releasing all claims "growing out of any and all known and unknown, foreseen and unforseen[,] bodily and personal injuries and property damage and the consequences thereof resulting from the accident." The release further provided that plaintiff "declare(s) and represent(s) that there may be unknown or unanticipated injuries resulting from the . . . accident . . . and[,] in making [ther]elease[,] it is understood and agreed that [it] is intended to include such injuries." Plaintiff thereafter had an MRI that revealed a herniated disc in her cervical spine.
Bronson v Hansel, 79 AD3d 1603, affirmed.
Cellino Barnes, PC, Buffalo ( Gregory V. Pajak and Ellen B. Sturm of counsel), for appellant.
Brown Kelly, LLP, Buffalo ( Patricia S. Ciccarelli of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed with costs.
In support of his motion for summary judgment, defendant proffered a prima facie case that the action should be barred on the ground of release. In opposition, plaintiff failed to raise a triable issue of fact that the release should be set aside on the ground of mutual mistake ( see Mangini v McClurg, 24 NY2d 556, 563-566) or because the settlement was not "fairly and knowingly made" ( Farrington v Harlem Sav. Bank, 280 NY 1, 4 [1939]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.