Levine v. Edwab

261 A.D.2d 449, 687 N.Y.S.2d 295, 1999 N.Y. App. Div. LEXIS 4744

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1999
• Status: Published

Opinion

—In an action to recover damages for dental malpractice, etc., the defendant appeals from an order of the Supreme Court, Kings County (Friedman, J.), dated March 10, 1998, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In this action to recover damages for dental malpractice, etc., the defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff Eugene Levine had executed a general release barring the causes of action asserted in the complaint. On appeal, the plaintiffs have asked us to search the record (see, CPLR 3212 [b]) to award them summary judgment dismissing the defendant’s affirmative defense of release.

Issues of fact exist as to whether the purported release signed by the plaintiff Eugene Levine upon receipt of the refund tendered by the defendant for an unsuccessful dental treatment was intended to constitute a general release barring the instant malpractice action (see, Best v Yutaka, 90 NY2d 833). Therefore, neither the plaintiffs nor the defendant is entitled to summary judgment.

The defendant’s remaining contentions are without merit. S. Miller, J. P., Sullivan, Joy and Altman, JJ., concur.