Paige v. City of Buffalo ( 2002 )

(dissenting in part). I respectfully dissent. In my view, Supreme Court properly granted defendants’ cross motion for summary judgment dismissing the complaint based on the release signed by plaintiff. Contrary to the majority’s conclusion, plaintiff failed to raise an issue of fact whether the release is void because it is based upon the mutual mistake of the parties that plaintiff did not sustain a serious injury as a result of the accident. 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. Plaintiff testified at the General Municipal Law § 50-h hearing that he experienced pain in his head from the date of the accident until the chronic subdural hematoma was diagnosed approximately two months later. Plaintiff’s neurosurgeon states in an affidavit submitted in support of plaintiff’s cross motion that plaintiff experienced headaches for two months following the accident and that he “experienced at least five blackouts” before his condition was diagnosed. In my view, therefore, the chronic subdural hematoma “is ‘a consequence, or sequela, of the known [head] injury’ ” (Finklea v Heim, 262 AD2d 1056, 1057) and, “[a]t best, plaintiff! ] [has] established a mere unilateral mistake on [his] part * * * with respect to the meaning and effect of the release. Such a mistake does not constitute an adequate basis for invalidating a clear, unambiguous and validly executed release” (Booth v 3669 Delaware, 242 AD2d 921, 922, affd 92 NY2d 934). The release clearly states that plaintiff releases defendant from “all known and unknown * * * injuries.” In my view, the parties had not agreed to the terms of the release based upon a “mutual misapprehension” of plaintiff’s injuries (Gibli v Kadosh, 279 AD2d 35, 38)-, and thus I would affirm. Present — Pigott, Jr., P.J., Pine, Wisner, Scudder and Kehoe, JJ.