130 A.D.2d 473 | N.Y. App. Div. | 1987
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Hurowitz, J.), dated January 31, 1986, which granted the motion of the plaintiffs to restore the action to the Trial Calendar to the extent of vacating the parties’ settlement and directing additional disclosure.
Ordered that the order is affirmed, with costs.
At the time the plaintiffs accepted the offer of settlement, there had not as yet been any diagnosis of the plaintiff William E. Pokora’s probable herniated disc. Indeed, according to the record, it was not until some five years after the accident and one month prior to the settlement that anything other than a severe sprain was even suspected.
As the plaintiffs did not have actual knowledge of the herniated disc and the plaintiff William E. Pokora’s consequent need for back surgery when he accepted the defendant’s offer, the court did not err in vacating the settlement (see, Mangini v McClurg, 24 NY2d 556). Thompson, J. P., Lawrence, Rubin, Kunzeman and Sullivan, JJ., concur.
