Opinion
2002-02428.
Decided May 10, 2004.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 2002, as denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(5) based on a release.
Martin, Fallon Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellants.
Lite Russell, West Islip, N.Y. (Justin N. Lite of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, HOWARD MILLER, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court correctly denied the defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) based on a release ( see Mangini v. McClurg, 24 N.Y.2d 556; Haynes v. Garez, 304 A.D.2d 714; Curry v. Episcopal Health Servs., 248 A.D.2d 662; Carola v. NKO Contr. Corp., 205 A.D.2d 931; Horn v. Timmons, 180 A.D.2d 717). There are questions of fact as to whether the release was "fairly and knowingly" made regarding the injuries at issue in this case. Further, given the plaintiff's "later-discovered need for surgery, there are questions of fact as to whether there was a mutual mistake concerning such injuries" ( Haynes v. Garez, supra at 715; see Mangini v. McClurg, supra).
PRUDENTI, P.J., RITTER, H. MILLER and CRANE, JJ., concur.