— John Roberts, et al., Plaintiffs–Respondents–Appellants, v. << (2015)

-against-

Lower Manhattan Development

Corp., et al.,

Defendants–Appellants–Respondents.

Lower Manhattan Development

Corporation, et al.,

Third–Party Plaintiffs–Respondents,

-against-

Regional Scaffolding/Safeway

Environmental, N.Y. Joint Venture, LLC,

Third–Party Defendant–Appellant.

— respondents/respondents.

Parker Waichman, LLP, Port Washington (Jay L.T. Breakstone of counsel), for respondents-appellants.

_

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered January 9, 2014, as amended by order entered June 27, 2014, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for summary judgment on the issue of liability on their Labor Law § 240(1) claim and defendants' motion for summary judgment dismissing the complaint as against defendant Lower Manhattan Development Corp. (LMDC), with leave to renew based on medical testimony regarding the injured plaintiff's hospital records, and denied third-party defendant Regional Scaffolding/Safeway Environmental, N.Y. Joint Venture, LLC's motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

On this record, it cannot be determined whether the release executed by plaintiff bars this action as against defendant LMDC or should be set aside as based on a mutual mistake of fact (see Mangini v. McClurg, 24 N.Y.2d 556 [1969] ).   Plaintiff signed the release three weeks after his fall from a scaffold, at which time he and one of third-party defendant's principals believed, according to their testimony, that his injuries were limited to fractured ribs.   Less than three months after the accident, plaintiff was diagnosed with herniated discs.   Defendants contend that the disc herniations were a consequence of the known injury, and that, based on that injury, plaintiff could have known of the herniated discs before signing the release if he had sought to obtain the required test.   The record does not allow us to conclusively determine this question.

We have considered the parties' remaining arguments for affirmative relief and find them unavailing.

_

CLERK