Bronson v. Hansel

Appellate Division of the Supreme Court of New York

Bronson v. Hansel

79 A.D.3d 1603, 913 N.Y.S.2d 851

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 30, 2010

StatusPublished

This text of 79 A.D.3d 1603 (Bronson v. Hansel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bronson v. Hansel, 79 A.D.3d 1603, 913 N.Y.S.2d 851 (N.Y. Ct. App. 2010).

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Appeal from an order of the Supreme Court, Orleans County (James P Punch, A.J.), entered September 30, 2009 in a personal injury action. The order granted defendant’s motion for summary judgment.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle accident. Prior to that time, however, plaintiff signed a “Release of All Claims” (release) in consideration of $1,039.82, releasing all claims “growing out of any and all known and unknown, foreseen and unforseent,] bodily and personal injuries and property damage and the consequences thereof resulting from the accident.” The release further provided that plaintiff “declare(s) and representís) that there may be unknown or unanticipated injuries resulting from the . . . accident . . . and[,] in making [the r]elease[J 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.

Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint based on plaintiffs release. The record establishes that, prior to signing the release, plaintiff had complained of neck pain during an emergency room visit and to her primary care physician at a subsequent office [1604]*1604visit. Plaintiff was thereafter referred to physical therapy for treatment of a “cervical strain.” During another visit to her primary care physician five days prior to signing the release, plaintiff was scheduled to have an MRI of her cervical spine. Thus, it is undisputed that plaintiff knew of her neck injury before signing the release. It is well settled that “[t]he discovery of [a] herniated disc is ‘a consequence, or sequela, of [that] known injury’ ” (Finklea v Heim, 262 AD2d 1056, 1057 [1999]; see generally Mangini v McClurg, 24 NY2d 556, 564 [1969]). Here, it cannot be said that “the nature of the subsequently discovered [herniated disc in the cervical spine was], as a practical or medical matter, . . . distinguishable from unanticipated consequences of [the] known injury,” i.e., the cervical strain (Mangini, 24 NY2d at 567). The injury site was the same, and “ordinary medical caution . . . suggested the possibility of the associated injury[, i.e., the herniated disc], at the site” (id.).

Further, plaintiff cannot avoid the release, the language of which was unambiguous, by now claiming that she did not understand its terms (see Finklea, 262 AD2d 1056 [1999]; De-Quatro v Zhen Yu Li, 211 AD2d 609 [1995]). Although plaintiff admitted that she did not read the release “ ‘word for word,’ ” it is well settled that “[a] party is under an obligation to read a document before executing it and cannot avoid its effect by asserting that he or she did not read it or know its contents” (Pressley v Rochester City School Dist., 234 AD2d 998, 999 [1996]).

All concur except Green and Gorski, JJ., who dissent and vote to reverse in accordance with the following memorandum.

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Appeal from an order of the Supreme Court, Orleans County (James P Punch, A.J.), entered September 30, 2009 in a personal injury action. The order granted defendant’s motion for summary judgment.

It is hereby ordered that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in a motor vehicle accident. Prior to that time, however, plaintiff signed a “Release of All Claims” (release) in consideration of $1,039.82, releasing all claims “growing out of any and all known and unknown, foreseen and unforseent,] bodily and personal injuries and property damage and the consequences thereof resulting from the accident.” The release further provided that plaintiff “declare(s) and representís) that there may be unknown or unanticipated injuries resulting from the . . . accident . . . and[,] in making [the r]elease[J 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.

Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint based on plaintiffs release. The record establishes that, prior to signing the release, plaintiff had complained of neck pain during an emergency room visit and to her primary care physician at a subsequent office [1604]*1604visit. Plaintiff was thereafter referred to physical therapy for treatment of a “cervical strain.” During another visit to her primary care physician five days prior to signing the release, plaintiff was scheduled to have an MRI of her cervical spine. Thus, it is undisputed that plaintiff knew of her neck injury before signing the release. It is well settled that “[t]he discovery of [a] herniated disc is ‘a consequence, or sequela, of [that] known injury’ ” (Finklea v Heim, 262 AD2d 1056, 1057 [1999]; see generally Mangini v McClurg, 24 NY2d 556, 564 [1969]). Here, it cannot be said that “the nature of the subsequently discovered [herniated disc in the cervical spine was], as a practical or medical matter, . . . distinguishable from unanticipated consequences of [the] known injury,” i.e., the cervical strain (Mangini, 24 NY2d at 567). The injury site was the same, and “ordinary medical caution . . . suggested the possibility of the associated injury[, i.e., the herniated disc], at the site” (id.).

Further, plaintiff cannot avoid the release, the language of which was unambiguous, by now claiming that she did not understand its terms (see Finklea, 262 AD2d 1056 [1999]; De-Quatro v Zhen Yu Li, 211 AD2d 609 [1995]). Although plaintiff admitted that she did not read the release “ ‘word for word,’ ” it is well settled that “[a] party is under an obligation to read a document before executing it and cannot avoid its effect by asserting that he or she did not read it or know its contents” (Pressley v Rochester City School Dist., 234 AD2d 998, 999 [1996]).

All concur except Green and Gorski, JJ., who dissent and vote to reverse in accordance with the following memorandum.

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79 A.D.3d 1603, 913 N.Y.S.2d 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bronson-v-hansel-nyappdiv-2010.

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