Submitted - February 26, 2018
Rheingold Giuffra Ruffo & Plotkin LLP, New York, NY
(Edward A. Ruffo of counsel), for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, White Plains, NY
(Daniel S. Ratner of counsel), for respondent.
D. SCHEINKMAN, P.J. JEFFREY A. COHEN COLLEEN D. DUFFY ANGELA
G. IANNACCI, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the plaintiff appeals from a judgment of the
Supreme Court, Queens County (Peter J. O'Donoghue, J.),
entered June 6, 2017. The judgment, upon an order of the same
court dated January 9, 2017, granting the motion of the
defendant North Shore University Hospital for summary
judgment dismissing the complaint insofar as asserted against
it, is in favor of North Shore University Hospital and
against the plaintiff dismissing the complaint insofar as
asserted against that defendant.
that the judgment is reversed, on the law, with costs, the
motion of the defendant North Shore University Hospital for
summary judgment dismissing the complaint insofar as asserted
against it is denied, the order dated January 9, 2017, is
modified accordingly, and the complaint is reinstated insofar
as asserted against that defendant.
October 2009, Joseph Chiappone sustained a perforated
duodenum during an endoscopic procedure performed at North
Shore University Hospital (hereinafter NSUH). On July 29,
2010, Joseph Chiappone, and his wife, Antonietta Chiappone,
suing derivatively, commenced an action to recover damages
for medical malpractice (hereinafter Action No. 1) against
NSUH and the surgeon that performed that procedure.
about July 5, 2013, Joseph Chiappone was again admitted to
NSUH, on this occasion for, inter alia, complaints of
shortness of breath, chest pains, and abdominal pain
(hereinafter the second admission). During this second
admission, on July 8, 2013, Joseph Chiappone suffered a
seizure and fell, sustaining a fracture of the right hip that
parties settled Action No. 1 on June 27, 2014. Joseph
Chiappone and Antonietta Chiappone executed and delivered a
release that released NSUH
"and all . . . related business entities . . . and all .
. . employees, physicians, [and] servants, . . . from all
past, present and future claims, demands, obligations,
actions, causes of action, wrongful death or bodily or
personal injury claims . . . of any kind whatsoever, whether
known or unknown, based upon any legal or equitable theory, .
. . which the RELEASORS, their heirs, executors,
administrators . . . hereafter can, shall, or may now have,
or may hereafter accrue or otherwise be acquired, against
RELEASEES for, upon, or by reason or any actual or alleged
act, omission, transaction, practice, conduct, occurrence, or
other matter . . . from the beginning of the world to the day
of the date of this RELEASE'' (hereinafter the
Chiappone died on October 11, 2014, allegedly due to
complications from the injuries that occurred during the
second admission. On January 5, 2016, Antonietta Chiappone
(hereinafter the plaintiff) commenced this action to recover
damages for medical malpractice and wrongful death relating
to the second admission (hereinafter Action No. 2). NSUH
moved for summary judgment dismissing the complaint insofar
as asserted against it, contending that Action No. 2 was
barred by the release executed by the parties as part of the
settlement of Action No. 1. The Supreme Court granted the
motion. A judgment was entered upon the order, and the
plaintiff appeals from the judgment.
meaning and coverage of a release necessarily depends upon
the controversy being settled and upon the purpose for which
the release was given (see Cahill v Regan, 5 N.Y.2d
292, 299; Nucci v Nucci, 118 A.D.3d 762, 763). While
a broad general release will be given effect regardless of
the parties' unexpressed intentions, such "release
may not be read to cover matters which the parties did not
intend to cover" (Gale v Citicorp, 278 A.D.2d
197; see Cahill v Regan, 5 N.Y.2d at 299;
Mazzurco v PIISam, LLC, 153 A.D.3d 1341, 1342;
Clerico v Pollack, 148 A.D.3d 769, 771; Nucci v
Nucci, 118 A.D.3d at 763; Desiderio v Geico Gen.
Ins. Co., 107 A.D.3d 662, 663; Apfel v Prestia,
41 A.D.3d 520, 520-521; Hughes v Long Is. Univ., 305
A.D.2d 462, 462-463).
to the Supreme Court's determination, NSUH failed to
establish, as a matter of law, that the release executed by
the parties settling Action No. 1 was intended to preclude
the plaintiff from recovering for claims that allegedly arose
during and as a result of the second admission, which were
not yet in dispute at the time the release was executed
(see Glassberg v Lee,82 A.D.3d 836, 837; Apfel
v Prestia, 41 A.D.3d at 521; Alcantara v 603-607
Realty Assoc.,273 A.D.2d 329, 329-330). While the
plaintiff may have been aware of the incident giving rise to
Action No. 2 when she signed the release, any such awareness
is insufficient, itself, to establish that the release was
intended to cover any ...