Opinion
2013-03-26
Pierre BERNARD, Plaintiff–Respondent, v. Rick SAYEGH, M.D., et al., Defendants–Appellants. Cabrini Medical Center, et al., Defendants,
Voute, Lohrfink, Magro & McAndrew, LLP, White Plains (Brian D. Meisner of counsel), for Rick Sayegh, M.D., appellant. Gordon & Silber, P.C., New York (Meredith Cook Lander of counsel), for Sebastiano Cassaro, M.D., appellant.
Voute, Lohrfink, Magro & McAndrew, LLP, White Plains (Brian D. Meisner of counsel), for Rick Sayegh, M.D., appellant. Gordon & Silber, P.C., New York (Meredith Cook Lander of counsel), for Sebastiano Cassaro, M.D., appellant.
Pellegrini & Associates, LLC, New York (Frank L. Pellegrini of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, DeGRASSE, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered May 15, 2012, which, in this medical malpractice action, to the extent appealed from as limited by the briefs, denied defendants-appellants' motions to dismiss pursuant to CPLR 3211(a)(5), unanimously reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment dismissing the complaint as against defendants-appellants.
The general release states that consideration provided by defendant hospital constituted “complete payment for all damages and injuries” and was intended to release not only the hospital but also, “whether presently known or unknown, all tortfeasors liable or claimed to be liable jointly with the [hospital]; and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the [hospital].”
The action should have been dismissed as against defendants-appellants based on the unambiguous language in the release, which clearly intended to put an end to the action ( see Wells v. Shearson Lehman/American Express, 72 N.Y.2d 11, 23, 530 N.Y.S.2d 517, 526 N.E.2d 8 [1988];Rodriguez v. Saal, 51 A.D.3d 449, 450, 857 N.Y.S.2d 546 [1st Dept. 2008] ). Given the unambiguous terms of the release, the motion court should not have considered extrinsic evidence ( see Wells, 72 N.Y.2d at 24, 530 N.Y.S.2d 517, 526 N.E.2d 8;Rodriguez, 51 A.D.3d at 450, 857 N.Y.S.2d 546)—namely, the stipulation of settlement of the action with the hospital, filed in connection with the hospital's bankruptcy proceedings. The general release does not refer to the stipulation, which was executed more than a month before the general release and negotiated during bankruptcy proceedings in federal court ( compare Rodriguez, 51 A.D.3d at 450, 857 N.Y.S.2d 546,with BWA Corp. v. Alltrans Express U.S.A., 112 A.D.2d 850, 852, 493 N.Y.S.2d 1 [1st Dept. 1985] ).
We reject plaintiff's argument that the appeal is moot. Plaintiff never sought permission from the motion court to reform the general release ( see Ribacoff v. Chubb Group of Ins. Cos., 2 A.D.3d 153, 154, 770 N.Y.S.2d 1 [1st Dept. 2003] ). Moreover, absent evidence from the hospital that there was any mutual mistake, the reformed general release, executed after entry of the order under review, will not be considered ( id.). Further, plaintiff never argued before the motion court that the stipulation of discontinuance of the action against the hospital and another doctor renders this controversy moot. Accordingly, we decline to consider this claim ( see Sonnenschein v. Douglas Elliman–Gibbons & Ives, 96 N.Y.2d 369, 376–377, 729 N.Y.S.2d 62, 753 N.E.2d 857 [2001] ).