Opinion
8706 Index 22499/17E
03-14-2019
Manuel D. PAULINO, Plaintiff–Respondent, v. Menachem BRAUN, Defendant–Appellant.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant. Gropper Law Group, PLLC, New York (Joshua Gropper of counsel), for respondent.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for appellant.
Gropper Law Group, PLLC, New York (Joshua Gropper of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kapnick, Kahn, Oing, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered on or about June 13, 2018, which, to the extent appealed from, denied defendant's motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff alleges that he sustained a fractured pelvis as a result of defendant's negligent operation of a boat on the Hudson River. Defendant moved to dismiss the complaint on the ground that plaintiff accepted $ 6,000 in settlement and release of all claims. In opposition, plaintiff submitted an affidavit stating that a claim specialist for defendant's insurer made him the $ 6,000 offer while he was still recovering from surgery and unable to work, and that, despite his response that it was insufficient, continued to "pressure" him to sign the release until "[f]inally" he "relented." At this posture of the litigation, the evidence of overreaching and unfair circumstances raises an issue of fact as to the validity of the release (see Mangini v. McClurg , 24 N.Y.2d 556, 567, 301 N.Y.S.2d 508, 249 N.E.2d 386 [1969] ; Sacchetti–Virga v. Bonilla , 158 A.D.3d 783, 784, 73 N.Y.S.3d 194 [2d Dept. 2018] ; Powell v. Adler , 128 A.D.3d 1039, 1041, 10 N.Y.S.3d 306 [2d Dept. 2015] ). Both the "nature of the relationship between the parties" that negotiated the release and "the disparity between the consideration received and the fair value" of plaintiff's claim weigh in plaintiff's favor (see Skolnick v. Goldberg , 297 A.D.2d 18, 20, 746 N.Y.S.2d 296 [1st Dept. 2002] ).
Defendant's contention that plaintiff ratified the release is unpreserved and does not present a pure question of law appearing on the face of the record that may be considered for the first time on appeal (see Nadella v. City of New York , 161 A.D.3d 412, 413, 75 N.Y.S.3d 21 [1st Dept. 2018] ).