Cabibi v. Lundrigan

Appellate Division of the Supreme Court of New York

Cabibi v. Lundrigan

7 A.D.3d 556, 775 N.Y.S.2d 892

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

DecidedMay 10, 2004

StatusPublished

Cited by3 cases

This text of 7 A.D.3d 556 (Cabibi v. Lundrigan) 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.

Bluebook

Cabibi v. Lundrigan, 7 A.D.3d 556, 775 N.Y.S.2d 892 (N.Y. Ct. App. 2004).

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Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an [557]*557order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 2002, as denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release (see Mangini v McClurg, 24 NY2d 556 [1969]; Haynes v Garez, 304 AD2d 714 [2003]; Curry v Episcopal Health Servs., 248 AD2d 662 [1998]; Carola v NKO Contr. Corp., 205 AD2d 931 [1994]; Horn v Timmons, 180 AD2d 717 [1992]). There are questions of fact as to whether the release was “fairly and knowingly” made regarding the injuries at issue in this case. Further, given the plaintiffs “later-discovered need for surgery, there are questions of fact as to whether there was a mutual mistake concerning such injuries” (Haynes v Garez, supra at 715; see Mangini v McClurg, supra). Prudenti, P.J., Ritter, H. Miller and Crane, JJ., concur.

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In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an [557]*557order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 2002, as denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court correctly denied the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on a release (see Mangini v McClurg, 24 NY2d 556 [1969]; Haynes v Garez, 304 AD2d 714 [2003]; Curry v Episcopal Health Servs., 248 AD2d 662 [1998]; Carola v NKO Contr. Corp., 205 AD2d 931 [1994]; Horn v Timmons, 180 AD2d 717 [1992]). There are questions of fact as to whether the release was “fairly and knowingly” made regarding the injuries at issue in this case. Further, given the plaintiffs “later-discovered need for surgery, there are questions of fact as to whether there was a mutual mistake concerning such injuries” (Haynes v Garez, supra at 715; see Mangini v McClurg, supra). Prudenti, P.J., Ritter, H. Miller and Crane, JJ., concur.

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Bluebook (online)

7 A.D.3d 556, 775 N.Y.S.2d 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cabibi-v-lundrigan-nyappdiv-2004.

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