Opinion
2015-05-21
Arnaud C. ACHACHE, et al., Plaintiffs–Appellants, v. Daniel OCH, et al., Defendants–Respondents.
Garvey Schubert Barer, New York (Andrew J. Goodman of counsel), for appellants. Debevoise & Plimpton LLP, New York (Edwin G. Schallert of counsel), for respondents.
Garvey Schubert Barer, New York (Andrew J. Goodman of counsel), for appellants. Debevoise & Plimpton LLP, New York (Edwin G. Schallert of counsel), for respondents.
Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 14, 2014, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 13, 2014, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court correctly found that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress ( see e.g. Leader v. Dinkler Mgt. Corp., 26 A.D.2d 683, 272 N.Y.S.2d 397 [2d Dept.1966], affd. 20 N.Y.2d 393, 283 N.Y.S.2d 281, 230 N.E.2d 120 [1967] ). Plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period ( see Austin Instrument v. Loral Corp., 29 N.Y.2d 124, 133, 324 N.Y.S.2d 22, 272 N.E.2d 533 [1971]; Sosnoff v. Carter, 165 A.D.2d 486, 492, 568 N.Y.S.2d 43 [1st Dept.1991] ). However, they delayed an additional 10 months beyond those two years ( see Leader, 26 A.D.2d at 683, 272 N.Y.S.2d 397 [six-month delay waived claim of duress] ).
Assuming arguendo that triable issues exist as to unconscionability and overreaching ( seeCPLR 3211[c] ), plaintiffs' ratification of the release bars them from challenging it on those grounds ( see Allen v. Riese Org., Inc., 106 A.D.3d 514, 517, 965 N.Y.S.2d 437 [1st Dept.2013] ). Plaintiffs' claim that they received no benefits at all from the separation agreement and release is belied by the record.