Majority
p. 1056David Finklea, Jr., Appellant, v James E. Heim et al., Respondents. [692 NYS2d 280]
—Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for personal injuries resulting from a motor vehicle accident. However, prior to the time that an MRI showed the existence of a mid-line disc herniation, plaintiff signed a full release in consideration for the sum of $1,200, relinquishing “all claims, actions, damages * * * on account of or in any way growing out of, any and all known and unknown personal injuries and damages resulting from an automobile
p. 1057
accident which occurred on or about [May 31, 1997].” Supreme Court properly granted defendants’ motion to dismiss the complaint based on plaintiffs release. The court properly determined that “the diagnosis following an MRI * * * made after the execution of a release does [not] warrant a finding that the release is a product of mutual mistake.” It is undisputed that plaintiff knew of his back injury before signing the release. The discovery of the herniated disc is “a consequence, or sequela, of the known injury” (Galatioto v Hanes, 224 AD2d 923 , 924; see, Mangini v McClurg, 24 NY2d 556 , 564). Furthermore, plaintiff cannot avoid the release by now claiming that he did not understand its terms (see, DeQuatro v Zhen Yu Li, 211 AD2d 609 , 609-610). (Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Pleading.) Present — Pine, J. P., Lawton, Pigott, Jr., Hurlbutt and Scudder, JJ.
Cases cited
- Galatioto v. Hanes 224 AD2d 923 at 924 p. 1057
- Mangini v. McClurg 24 NY2d 556 at 564 p. 1057
- DeQuatro v. Zhen Yu Li 211 AD2d 609 at 609-610 p. 1057