Jessica P. Brock v Anthony J. Miller

Brock v Miller 2003 NYSlipOp 20237 December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Jessica P. Brock, Appellant,
v
Anthony J. Miller et al., Respondents.

—

Appeal from an order of Supreme Court, Oswego County (McCarthy, J.), entered February 24, 2003, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Defendants moved for summary judgment dismissing the complaint in this personal injury action as barred by a release signed by plaintiff, and plaintiff cross-moved for partial summary judgment dismissing the affirmative defense of release. Supreme Court properly granted defendants' motion and denied plaintiff's cross motion. The release unequivocally applies to any claim plaintiff may have had with respect to "any and all known and unknown personal injuries and damages resulting from [the] automobile accident" involving defendants. The contention of plaintiff that she did not intend to release her claims for personal injuries does not warrant setting the release aside (see Galatioto v Hanes, 224 AD2d 923 [1996]). Nor may plaintiff avoid the effect of the release based upon her admitted failure to read the release before signing it (see Verstreate v Cohen, 242 AD2d 862, 863; Pressley v Rochester City School Dist., 234 AD2d 998, 999 [1996]). Finally, the record establishes that plaintiff knew of her wrist injury and was receiving medical treatment for that injury at the time she executed the release, and the subsequent diagnosis of a fracture following a bone scan does not warrant setting aside the release based upon mutual mistake. "Where, as here, plaintiff knew of the injury for which she now seeks to recover at the time she executed the general release, but the alleged mistake is to a consequence, future course or sequela of the known injury, the release must stand" (Pressley, 234 AD2d at 998; see Finklea v Heim, 262 AD2d 1056 [1999]; Galatioto, 224 AD2d at 924; Wirhowski v Hudson Armored Car & Courier Serv., 221 AD2d 523, 525 [1995]). Present—Green, J.P., Hurlbutt, Scudder, Kehoe and Hayes, JJ.