BUDNACK v. CRYMES (2001)

 Plaintiff commenced this negligence action seeking damages for personal injuries she sustained in an automobile accident, and Supreme Court granted defendant's motion for summary judgment dismissing the complaint on the ground of release.   A release should not be set aside unless plaintiff demonstrates duress, illegality, fraud, or mutual mistake (see, Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386;  Cramer v. Newburgh Molded Prods., 228 A.D.2d 541, 645 N.Y.S.2d 46, lv. denied 89 N.Y.2d 803, 653 N.Y.S.2d 280, 675 N.E.2d 1233;  Stone v. National Bank & Trust Co., 188 A.D.2d 865, 867, 591 N.Y.S.2d 609). Although plaintiff contends for the first time on appeal that the release should be set aside on the ground of mutual mistake and thus failed to preserve that contention for our review (see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745), we nevertheless review that contention in the interest of justice (see, White v. Weiler, 255 A.D.2d 952, 952-953, 680 N.Y.S.2d 784).   We conclude that plaintiff raised a triable issue of fact whether there was a mutual mistake concerning the nature and extent of her injury (see, Carola v. NKO Contr. Corp., 205 A.D.2d 931, 932, 613 N.Y.S.2d 497;  Horn v. Timmons, 180 A.D.2d 717, 718, 580 N.Y.S.2d 364). We therefore reverse the order, deny the motion and reinstate the complaint.

Order unanimously reversed in the interest of justice without costs, motion denied and complaint reinstated.

MEMORANDUM: