Khalid v. Scagnelli

• Decision Date: 24 January 2002
• Citation: Khalid v. Scagnelli, 290 A.D.2d 352, 736 N.Y.S.2d 374 (N.Y. App. Div. 2002)
• Parties: MOHAMED KHALID, Respondent,<BR>v.<BR>MICHAEL A. SCAGNELLI et al., Appellants.
• Court: New York Supreme Court — Appellate Division

290 A.D.2d 352

736 N.Y.S.2d 374

MOHAMED KHALID, Respondent,

v.MICHAEL A. SCAGNELLI et al., Appellants.

Decided January 24, 2002.

Concur — Williams, J.P., Tom, Rosenberger, Wallach and Marlow, JJ.

Plaintiff was allegedly struck and injured by defendants' truck while riding a bicycle on Manhattan's Lower East Side on November 7, 2000. He was treated at Cabrini Hospital for a broken leg. Six days later, private investigator Don Guarcello was authorized by defendant Coca-Cola's claims representative to offer plaintiff a settlement.

On November 15, in the presence of a social worker, Guarcello visited plaintiff at the hospital and spoke with him, with the assistance of a nurse who spoke both English and Arabic. Appearing to be in good spirits and expecting to be discharged shortly, plaintiff gave Guarcello his version of the accident. Guarcello then raised the prospect of a settlement, at which point plaintiff indicated that he had already consulted with an attorney who had been introduced to him by a friend. Guarcello informed plaintiff that he could not discuss the matter further, in light of his representation by counsel, to which plaintiff responded that he was going to discharge the attorney, and would rather settle the matter than pursue legal action. At plaintiff's behest, the nurse telephoned the attorney to tell him of plaintiff's intention, but the person who answered the call reportedly "reacted rudely and refused outright to discuss anything with her." Plaintiff then told Guarcello that he would have his friend telephone the attorney and take care of the discharge.

The next day, November 16, Guarcello spoke with plaintiff, again with the assistance of the nurse acting as interpreter, and was informed that plaintiff's friend had notified the attorney that his services were no longer desired. Guarcello then negotiated a settlement for $30,000, in exchange for a limited release that excepted medical expenses, which would still be covered by defendants' no-fault insurer. Plaintiff reiterated his desire to settle the matter quickly, without resort to legal action.

Guarcello returned to the hospital on November 17 and obtained the notarized release of plaintiff's claim, this time in the presence and with the translation assistance of a United Nations employee who happened to be a patient in the same room. Plaintiff was identified on the documents as Mohamed Khalid Ahmed Alsabbagh, at an address in Jersey City. The check was delivered and subsequently cashed.

Unbeknownst to Guarcello, the instant $5 million lawsuit was commenced on November 16, 2000.^[2] Defendants' motion to dismiss was supported by a detailed affidavit by Guarcello in which he indicated that the release had been procured without fraud, deceit or duress, and had been negotiated and executed promptly pursuant to plaintiff's repeatedly expressed desire for a quick settlement in lieu of legal action.

Trial Term denied defendants' motion "as a matter of...