Opinion
November 15, 1989
Appeal from the Supreme Court, Chautauqua County, Ricotta, J.
Present — Callahan, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order reversed on the law without costs and defendant's motion denied. Memorandum: Supreme Court erred by dismissing plaintiff's complaint because a question of fact exists concerning whether plaintiff suffers from an injury unknown at the time of the release or suffers merely from an unanticipated consequence of a known injury (see, Mangini v McClurg, 24 N.Y.2d 556).
All concur, except Boomer and Lawton, JJ., who dissent and vote to affirm, in the following memorandum.
We would affirm. The only reason advanced by plaintiff in support of his request for equitable relief is that there was a mutual mistake with respect to the extent of his injury. Plaintiff failed, however, to produce evidence in admissible form that the injuries now complained of were sufficiently different from those known to him at the time he executed the settlement agreement (see, Mangini v McClurg, 24 N.Y.2d 556, 564; Marchello v Lenox Hill Hosp., 107 A.D.2d 566, affd 65 N.Y.2d 833; Elson v Delaney, 47 A.D.2d 708; Viskovich v Walsh-Fuller-Slattery, 16 A.D.2d 67, affd 13 N.Y.2d 1100; Potter v Guertze, 5 A.D.2d 924). In this regard, no affidavits by qualified medical personnel were submitted in support of plaintiff's contention that a subsequent operation for removal of a herniated thoracic disc was related to the accident. Further, the hospital records submitted by plaintiff indicate that his symptoms may even be caused by an unrelated illness.
Under these facts, Supreme Court was correct in finding that plaintiff failed to meet his heavy burden and properly granted defendant's motion for summary judgment.