Rivera v. Vickers

Nov 26, 1979
Versions:72 A.D.2d 807
421 N.Y.S.2d 918
1979 N.Y. App. Div. LEXIS 14079

In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated May 31, 1979, which, after a hearing, granted plaintiffs’ motion to strike defendants’ second affirmative defense. Order affirmed, with $50 costs and disburse*808ments. On the particular facts of this case it appears that the release signed by plaintiff Khan was obtained under circumstances which indicate unfairness, overreaching and unconscionability and, therefore, is void (see Fleming v Ponziani, 24 NY2d 105). Plaintiff Khan was induced to sign the release at the home of the defendants five months after he was injured in the fire which is the basis of this action. He was not represented by counsel and was suffering from vision impairment as a result of the fire and did not read the release. Instead, he relied on defendants’ explanation of the document and was misled as to its true meaning. Under these facts the affirmative defense of release cannot be permitted to put an end to this plaintiff’s cause of action. Rabin, J. P., Cohalan, Hargett and Gibbons, JJ., concur.