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COURT OF APPEALS OF NEW YORK 1969.NY.40662 <>; 247 N.E.2d 114; 24 N.Y.2d 105 decided: February 27, 1969. EDWARD FLEMING, RESPONDENT,v.DOMENIC PONZIANI ET AL., APPELLANTS, ET AL., DEFENDANTS Fleming v. Ponziani, 29 A.D.2d 881, affirmed. Counsel Edward J. Hart for appellants. Harold Merran and Philip L. Wiener for respondent. Keating, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur. Author: Keating

Fleming v. Ponziani, Keating, J. Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur.

Author: Keating

 Edward Fleming was removed from the scene of an accident by ambulance in a state of unconsciousness and taken to a nearby hospital. Only minutes before he had been a passenger in a vehicle owned by an old friend, Theodore Chodorowski, and driven with his consent by Domenic Ponziani. Chodorowski's car collided with a milk truck owned by Rainbow Dairies and operated by Chester Suzel.

Fleming's injuries were extensive. The hospital admission records indicate that he was suffering from multiple lacerations of the face and scalp, possible cerebral concussion and fracture of the skull and was in a comatose condition upon arrival. On the day following his admittance the records indicate he had a grand mal seizure.

On November 14, 1960, a Monday, two days after the accident, Fleming's good friend Chodorowski came to visit him in the hospital. Chodorowski's arms were not burdened with gifts or flowers, but rather he was armed with a general release. The form had been obtained the day before from his attorney, whose advice prompted the visit to his ill friend. The blanks in the unexecuted copy of the general release had been completed in counsel's office, and Chodorowski carried the paper to the hospital to get the last blank filled -- Fleming's signature.

Fleming was propped up in bed when Chodorowski arrived. His left hand was suspended in a splint and his forehead bandaged. Chodorowski, upon entering the patient's room, did not engage in even the normal amount of perfunctory social amenities, but rather immediately asked Fleming to sign the release. No discussion was undertaken concerning the implications of Fleming's signing the release. Also, the parties did not discuss the terms or consideration embodied in the release. It is clear that neither party, at the time the release was executed, was aware of the extent of Fleming's injuries.

The release was signed in the presence of a nun who also notarized the instrument. After the formal execution of the release Chodorowski placed a dollar bill before Fleming and departed. The length of the visit was less than five minutes. The day after the release was signed, hospital officials discovered that Fleming's injuries were more extensive than originally diagnosed. In addition to his other injuries, he had a fractured scapula. Fleming was released from the hospital on November 28, 16 days after admittance, and permitted to finish his convalescence at home.

On December 30, 1961 Fleming instituted an action by the service of a summons and complaint on Chodorowski and Ponziani to recover for injuries arising out of the negligent operation of the car driven by Ponziani and owned by Chodorowski. Previously, on November 25, 1960, he had instituted an action against Rainbow Dairies and Suzel for their negligence. Defendants Chodorowski and Ponziani, in answer to Fleming's complaint, asserted, as an affirmative defense, the general release which Fleming signed while he was a patient in the hospital. The validity of the release was directed to be tried separately from the issue of negligence.

A motion for a directed verdict at the close of all the evidence was made upon the claim that no issue as to the validity of the release had been raised. The court denied the motion. The court held that questions of fact were raised on which the jury was required to pass.

The court charged the jury that "The burden of proof was on the defendant in this case to prove that there was an executed general release. Now, that burden has been met by the defendant by putting in evidence the signed release that was executed by the plaintiff, Mr. Fleming, and signed by him as he conceded that he signed it. At that point it is the burden of the plaintiff to prove, by a fair preponderance, what we call a fair preponderance of the credible evidence that although the release was signed and it was executed, that it was executed either under an unawareness of what he was doing, a mistake, a mutual mistake that he and his friend or the defendant didn't realize the import of what their release suggested and what it intended to do." Fleming's lawyer excepted to this part of the charge. In addition he requested that the jury be charged that the release was obtained in violation of section 270-b of the former Penal Law.

The jury returned a verdict in favor of the defendants, which the Trial Judge set aside. In addition, he struck the affirmative defense of release from the defendants' answers and directed the action be set down for trial on the issue of negligence.

The Appellate Division (Second Department) reversed on the law and ordered a new trial solely because of the Judge's failure to instruct the jury properly. While the jury could have found that the plaintiff had falsely denied recollection of his execution of the release, a new trial was ordered both because the jury was instructed incorrectly on who had the burden of proving the validity of the release and because the jury should have been instructed that it was procured in violation of section 270-b of the former Penal Law (now Judiciary Law, ยง 480). Defendants appeal from the order of the Appellate Division by stipulating for judgment absolute.

The issues raised by the appeal are (1) whether a person who has received a release from a patient in a hospital, within 15 days of the injury, has the burden of persuading the jury as to the plaintiff's knowledge and understanding at the time of the release, and (2) whether it is proper for the court to instruct the jury that the procurement of the release was in violation of section 270-b of the former Penal Law.*fn*

In Bloodgood v. Lynch (293 N. Y. 308, 311) we stated that "[The] purpose of section 270-b is to prevent the negotiating of settlements or the obtaining of general releases or statements with reference to personal injuries sustained by a patient in connection with a personal injury action or claim until a decent interval has elapsed." It is not an unwarranted construction of the statute to place the burden of proof on the party who seeks to use the release defensively. On the contrary, if a defendant seeks to deprive a patient of an opportunity to make a reasoned judgment, it is perfectly fair to require the defendant to prove all the elements of a duly executed contract including competency of the parties and meeting of the minds if a release is executed in a hospital within the first 15 days of the patient's being admitted. It is a valid assumption that a patient in a hospital, without assistance of friends and soon after an accident, even if conscious, would not fully understand the significance of signing a general release.

As the Appellate Division correctly stated, it was the Legislature's view that an injured person in a hospital is neither in the physical nor emotional condition to give proper consideration to what course of action to take and this is ...

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