Summary
In Carola v NKO Contr. Corp. 205 AD2d 931 (3rd Dept 1994), the court set aside the release where the plaintiff was aware of back pain at the time of the release, but was unaware of the existence of three herniated discs.
Summary of this case from Roberts v. Lower Manhattan Dev. Corp.Opinion
June 16, 1994
Appeal from the Supreme Court, Westchester County (Burrows, J.).
On November 7, 1988, plaintiff, a carpenter and siding installer, was struck by the digging boom of a backhoe operated by defendant Nicholas Osso, an officer of defendant NKO Contracting Corporation (hereinafter collectively referred to as defendants). At the time of the accident, plaintiff received emergency treatment at a local hospital which included sutures to his head. Two weeks later, plaintiff visited a physician and was prescribed an anti-inflammatory to relieve his back pain. The pain gradually improved and plaintiff returned to work on a limited basis.
In mid-December 1988, defendants' insurance carrier communicated with plaintiff concerning a possible settlement. After discussions with defendants' representative, which plaintiff contends included a statement to the effect that the case was a "nuisance" and a warning that should he retain an attorney the insurance company would take a "no pay position", plaintiff, believing he had only "minor injuries", agreed to accept $4,000 in full settlement for his injuries. Four days later, he signed a general release. Within days thereafter, plaintiff began to experience intense back pain requiring him to consult with an orthopedist. Less than two weeks after his signing of the release, he was admitted to a hospital and diagnosed as having a large herniated lumbar disc at L5-S1 and a smaller herniated disc at L4-5. Surgery was performed and a further examination revealed another larger herniated disc at L4-5, necessitating additional surgery. Affidavits from plaintiff's treating physician established the causal link to this injury.
Plaintiff commenced this action to recover for injuries related to this accident and thereafter moved for summary judgment. Defendants cross-moved for summary judgment and dismissal of the complaint, contending that plaintiff was barred by the provisions of the general release. Supreme Court denied both motions and defendants appealed.
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 A.D.2d 717, 718; see, Mangini v. McClurg, 24 N.Y.2d 556, 564). However, "[i]f the injury is known, and the mistake * * * is merely as to the consequence, future course, or sequelae of a known injury, then the release will stand" (Mangini v McClurg, supra, at 564; see, Horn v. Timmons, supra; Coyle v Barker, 173 A.D.2d 756; Marchello v. Lenox Hill Hosp., 107 A.D.2d 566, affd 65 N.Y.2d 833; Moyer v. Scholz, 22 A.D.2d 50).
Here, the record does not contain any indication that when the release was signed either party had actual knowledge of the herniated discs which subsequently required surgery (see, Pokora v. Albergo, 130 A.D.2d 473; cf., Coyle v. Barker, supra; Marchello v. Lenox Hill Hosp., supra). Hence, in light of the guidance detailed in Mangini v. McClurg (supra, at 565), "[e]ven where a releasor has knowledge of the causative trauma, it has been held that there must be actual knowledge of the injury. Knowledge of injury to an area of the body cannot cover injury of a different type and gravity". In noting that plaintiff bears the burden of persuasion on this issue, we find that plaintiff has made a prima facie showing of mutual mistake and that Supreme Court properly found a question of fact as to "whether plaintiff suffers from an injury unknown at the time of the release or suffers merely from an unanticipated consequence of a known injury" (Spiegel v Gnadzinski, 155 A.D.2d 899; see, Mangini v. McClurg, supra; see also, Rill v. Darling, 21 A.D.2d 955, 956).
Similarly, we agree with Supreme Court that the question of whether the release was fairly and knowingly made should be left to the trier of fact (see, Mangini v. McClurg, supra, at 567-568; Rill v. Darling, supra, at 956).
Mercure, J.P., White, Casey and Weiss, JJ., concur. Ordered that the order is affirmed, with costs.