Dienstag v. Kiamesha-Concord, Inc.

283 A.D. 736, 127 N.Y.S.2d 908, 1954 N.Y. App. Div. LEXIS 5106

Opinion

In an action to recover damages for personal injuries sustained as the result of defendant’s alleged negligence, defendant appeals from an order denying its motion for a separate trial, pursuant to subdivision 2 of section 443 of the. Civil Practice Act, of the issue of the validity of a general release, and to examine plaintiff before trial; and granting plaintiff’s cross motion to examine defendant before trial and for permission to take photographs of the area where the accident happened. On the appeal defendant has briefed only the question of separate trial. Order modified by striking therefrom the second ordering paragraph and by substituting therefor a provision that defendant’s motion be further granted by directing that the issue of general release be tried separately. As so modified, order affirmed, without costs. There is no claim of lack of knowledge of the nature of the injury at the time of the execution of the general release, which was witnessed by plaintiff’s two friends. The release was prominently labeled in large type “RELEASE OF ALL CLAIMS ”. A serious issue as to the validity of the general release is presented which should not be obscured by simultaneous trial of the issue of negligence. (Warner V. Star Co., 162 App. Div. 458; Piunthoshy v. Harrington’s Sons Co., 167 App. Div. 117, 123.) Wenzel, Beldock and Murphy, JJ., concur; Adel, Acting P. J., and Schmidt, J., dissent and vote to affirm the order.