Banker v. Strong Memorial Hospital

210 A.D.2d 1007, 621 N.Y.S.2d 1010, 1994 N.Y. App. Div. LEXIS 13614

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1994
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint against Strong Memorial Hospital dismissed. Memorandum: Supreme Court erred in denying the motion of defendant Strong Memorial Hospital to dismiss this action based upon plaintiff’s execution of a release. Plaintiff and the infant decedent’s mother, the sole beneficiaries of the decedent’s estate, extinguished the potential wrongful death action by executing the release prior to plaintiff’s appointment as administrator (see, Carter v County of Clinton, 197 AD2d 820). Although plaintiff argues that the release was procured by fraud, the report relied upon by plaintiff indicates to the contrary that physician error was not the cause of decedent’s. death; thus, plaintiff raised no issue of fact requiring denial of the motion. (Appeal from Order of Supreme Court, Monroe County, Kehoe, J.—Dismiss Complaint.) Present—Pine, J. P., Lawton, Fallon, Wesley and Davis, JJ.