Opinion
2013-09-18
Alma G. DAVIS, respondent, v. ROCHDALE VILLAGE, INC., et al., appellants.
Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), for appellants. Kiley, Kiley & Kiley, PLLC, Great Neck, N.Y. (James D. Kiley of counsel), for respondent.
Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), for appellants. Kiley, Kiley & Kiley, PLLC, Great Neck, N.Y. (James D. Kiley of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated April 16, 2012, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground of release.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint is granted.
In support of their motion to dismiss the complaint, the defendants submitted a release executed by the plaintiff, which, by its terms, barred the instant action against them ( seeCPLR 3211[a][5]; Schiller v. Guthrie, 102 A.D.3d 852, 958 N.Y.S.2d 736;Seff v. Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 A.D.3d 592, 865 N.Y.S.2d 323). “ ‘A release is a contract, and its construction is governed by contract law’ ” ( Cardinal Holdings, Ltd. v. Indotronix Intl. Corp., 73 A.D.3d 960, 962, 902 N.Y.S.2d 123, quoting Lee v. Boro Realty, LLC, 39 A.D.3d 715, 716, 832 N.Y.S.2d 453;see Kaminsky v. Gamache, 298 A.D.2d 361, 361, 751 N.Y.S.2d 254). “A release may be invalidated ... for any of ‘the traditional bases for setting aside written agreements' ” ( Centro Empresarial Cempresa S.A. v. Amêrica Môvil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386). However, “a signed release ‘shifts the burden of going forward ... to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release’ ” ( Centro Empresarial Cempresa S.A. v. Amêrica Môvil, S.A.B. de C.V., 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Fleming v. Ponziani, 24 N.Y.2d 105, 111, 299 N.Y.S.2d 134, 247 N.E.2d 114;see Haynes v. Garez, 304 A.D.2d 714, 715, 758 N.Y.S.2d 391;Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208).
Here, the plaintiff failed to demonstrate that there was fraud, duress, or some other fact sufficient to void the release. There is no merit to the plaintiff's contention that she lacked the mental capacity to enter into the release, and she failed to come forward with any valid excuse for failing to read the release prior to signing it ( see Matter of Augustine v. BankUnited FSB, 75 A.D.3d 596, 597, 905 N.Y.S.2d 652;Cash v. Titan Fin. Servs., Inc., 58 A.D.3d 785, 788, 873 N.Y.S.2d 642). In addition, the language of the release was clear and unambiguous, and the plaintiff's conclusory and unsubstantiated claim that she intended the release to only apply to her medical expenses, rather than to any claim for personal injuries, is insufficient to set aside the release ( see Lee v. Boro Realty, LLC, 39 A.D.3d 715, 832 N.Y.S.2d 453).
Accordingly, the release should have been given effect, and the Supreme Court should have granted the defendants' motion to dismiss the complaint ( see Centro Empresarial Cempresa S.A. v. Amêrica Môvil, S.A.B. de C.V., 17 N.Y.3d at 277–280, 929 N.Y.S.2d 3, 952 N.E.2d 995).