Gilbi v. Kadosh

• Decision Date: 05 December 2000
• Citation: Gilbi v. Kadosh, 717 N.Y.S.2d 553 (N.Y. App. Div. 2000)
• Parties: (A.D. 1 Dept. 2000) Alon Gibli, Plaintiff-Appellant, v. Daniel Kadosh, Defendant-Respondent. 2061 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 553

717 N.Y.S.2d 553 (A.D. 1 Dept. 2000)

Alon Gibli, Plaintiff-Appellant, v. Daniel Kadosh, Defendant-Respondent.

2061

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

December 5, 2000.

Marc A. Rapaport, attorney for plaintiff-appellant.

Elliot A. Cristantello, of counsel (Leonard A. Robusto, on the brief, Voute, Lohrfink, Magro & Collins, LLP, attorneys) for defendant-respondent.

Joseph P. Sullivan, P.J.

Eugene Nardelli, Israel

Rubin, David B. Saxe and David

Friedman, JJ.

SAXE, J.

On this appeal, we are asked to determine whether a release signed by the plaintiff is a bar to this dental malpractice action.

The facts as alleged by the plaintiff are as follows. He had been in this country some months when he began experiencing pain in the left side of his mouth. Having seen the defendant's advertisement in a local newspaper, the plaintiff scheduled an appointment with him. The defendant recommended that if the pain continued, a molar on the lower left side of the plaintiff's mouth should be extracted; the defendant indicated that the extraction should take approximately a half-hour. A few weeks later, on April 11, 1995, the defendant spent 2 to 2½ hours extracting the tooth, during which time the plaintiff needed about three short breaks to calm down. According to the plaintiff's deposition testimony, after the first 20 minutes of the procedure, "all hell broke loose." The defendant started to use brutal force, and the more brutal the force, the more explosive the pain became. Ultimately, the defendant used what appeared to be a chisel and hammer to remove the tooth. The plaintiff left the defendant's office in excruciating pain, but was assured that the pain and severe swelling he was experiencing were normal. Meanwhile, the plaintiff was not able to fully open his mouth until about a month later, at which time he found that the left side of his tongue and left inner side of his face were completely numb. The defendant continued to assure the plaintiff that this condition should end within about 3 months.

When the numbness persisted, the plaintiff sought the advice of other oral surgeons who referred him to a specialist, Dr. Salvatore Ruggiero, the Program Director at the Long Island Jewish Hospital Department of Dental Medicine, Division of Oral and Maxillofacial Surgery. Based on his examination of the plaintiff on August 17, 1995, Dr. Ruggiero concluded that the plaintiff suffered from "severe axonotmesis," a nerve injury characterized by an intact nerve trunk with damage of varying degrees, involving numbness that can last for several months. It was Dr. Ruggiero's position that because four months had passed since the time of the injury, which period he considered the "outer limits of the window for surgical intervention," he "strongly recommend[ed] that [plaintiff] undergo surgical exploration with the intent to repair the lingual nerve." The plaintiff was informed that the surgery would cost $10,000, a sum he did not have.

Believing the defendant to be responsible for his condition, and therefore to have an obligation to pay for the necessary surgery, the plaintiff made numerous attempts to reach the defendant, but was unsuccessful. Finally, a friend of the plaintiff succeeded in speaking with the defendant, who then agreed to pay the cost of the surgery, on condition that the plaintiff sign a release. On August 28, 1995, the plaintiff signed the following release, which was prepared by his immigration lawyer:

Dear Dr. Kadosh:

This shall confirm my agreement with you regarding the following:

You shall be responsible and promptly pay any and all costs relating to dental work to be performed on my mouth and teeth by Dr. Salvatore Ruggiero as a result of the work you performed April 11, 1995.

If you shall promptly pay all costs relating to the above-referenced work, I hereby release you from any claims which I may have in connection with the work you performed on me on April 11, 1995.

The defendant then negotiated a reduction in the cost of the procedure from $10,000 to $3,000, by eliminating the proposed hospital stay.

The surgery was not successful. Rather, Dr. Ruggiero discovered that the lingual nerve could not be repaired because it had been completely severed during the extraction. Thus, Dr. Ruggiero changed the plaintiff's diagnosis from axonotmesis to neurotmesis, a permanent nerve injury. As a result, it is alleged, this now 30-year -old plaintiff is saddled with the permanent loss of sensation on the left side of his mouth and tongue, affecting his ability to taste and to speak, as well as his appearance, with resulting emotional and psychological ramifications as well. This lawsuit for dental malpractice ensued.

The defendant's motion for summary judgment was based upon the existence of the release. The Civil Court, to which this action was transferred from the Supreme Court, denied the defendant's motion, concluding that the plaintiff might have a viable claim to set aside the release based on mutual mistake. Appellate Term reversed and dismissed the complaint, holding that the evidence offered did not establish mutual mistake.

We now reverse and reinstate the complaint, holding that the plaintiff's evidence was sufficient to create a question of fact, precluding summary judgment dismissal.

We are aware that a release "is a jural act of high significance without which the settlement of disputes would be rendered all but impossible" (Mangini v. McClurg, 24 NY2d 556, 563). It is well established that further litigation following a release should not be permitted "except under circumstances and under rules which would render any other result a grave injustice" (id.). "It is for this reason that the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake, must be established or else the release stands. In the instance of mutual mistake, the burden of persuasion is on the one who would set the release aside * * *" (id.; see also, Touloumis v. Chalem, 156 AD2d 230).

In these circumstances, enforcing the release would indeed represent " a grave injustice." In the mutual misapprehension that what was needed to repair the damage caused by the defendant was surgery that would cost $10,000, the plaintiff agreed to a deal by which the defendant would pay for the surgery, and the plaintiff, restored to something approximating his former health, would give up any claims against the defendant. If there had been any contemplated possibility that the injury was of a type that surgery could not repair and correct, there is no question that such deal would not have been considered.

The question here comes down to whether the information known to both parties at the time of the release precludes the possibility of mutual mistake.

The Mangini case drew a distinction between "[a] mistaken belief as to the nonexistence of presently existing injury" and a mistake "as to the consequence, future course, or sequelae of a known injury" (Mangini, supra at 564). In Mangini, the infant plaintiff was injured in an automobile accident and subsequently complained of lower back and left hip pain. All the physicians who examined the plaintiff prior to the settlement...