SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PIGOTT, JR., P.J., PINE, KEHOE, GORSKI, AND MARTOCHE, JJ.
TRAVIS M. FROST, PLAINTIFF-RESPONDENT,
MEMORANDUM AND ORDER
BUDGET CAR & TRUCK RENTAL, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C., NEW YORK (JASON
L. BECKERMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
CHERUNDOLO, BOTTAR & LEONE, P.C., SYRACUSE (JERROLD P. O’BRIEN OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County
(Thomas J. Murphy, J.), entered October 21, 2003. The order, among
other things, denied the motion of defendant Budget Car & Truck Rental
to dismiss the complaint against it and granted plaintiff’s motion to
dismiss its sixth affirmative defense.
It is hereby ORDERED that the order so appealed from be and the
same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for
injuries that he sustained when the vehicle that he was driving was
struck from the rear by a vehicle owned by Budget Car & Truck Rental
(defendant). Plaintiff sought medical treatment for neck pain on the
day following the accident and his neck pain went away. Approximately
six weeks after the accident, and approximately four months prior to
the diagnosis of two herniated discs in his lower spine, plaintiff
signed a general release in consideration of the amount of $1,000.
The fourth paragraph of the release states that “I/we further agree
that this release shall not be p