Best v. Yutaka

• Decision Date: 16 September 1996
• Citation: 646 N.Y.S.2d 995,231 A.D.2d 539
• Parties: David BEST, et al., Appellants, v. Nemoto YUTAKA, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 995

646 N.Y.S.2d 995

231 A.D.2d 539

David BEST, et al., Appellants, v. Nemoto YUTAKA, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Sept. 16, 1996.

Steven Smedresman, P.C., New York City (Gregory P. Haegele, of counsel), for appellants.

Smith Mazure Director Wilkins Young Yagerman & Tarallo, P.C., New York City (Richard Steigman, of counsel), for respondents.

Before ROSENBLATT, J.P., and MILLER, RITTER, SULLIVAN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (Dowd, J.), dated January 3, 1995, as, upon reargument, adhered to a prior determination granting the motion of the defendants for leave to amend their answer to assert the affirmative defense of release and for summary judgment dismissing the complaint on that basis.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On October 3, 1990, the plaintiff David Best voluntarily executed a document captioned "RELEASE OF ALL CLAIMS" wherein he agreed, inter alia, to discharge the defendants "from any and all claims * * * which the undersigned now has * * * or which may hereafter accrue on account of or in any way growing out of any and all known and unknown * * * bodily and personal injuries and property damage and the consequences thereof" arising from an accident which occurred on September 5, 1990. The text of the release was followed by the statement "THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT" in large capital letters, and immediately above Mr. Best's signature appeared the words "CAUTION: READ BEFORE SIGNING BELOW" in bold-faced type. The plaintiffs presently maintain that the Supreme Court erred in granting the defendants' application for leave to amend the answer to assert the release as a defense to the plaintiffs' personal injury action. Moreover, notwithstanding the clear terms of the release, the plaintiffs contend that a question exists regarding whether the parties intended it to apply to Mr. Best's alleged physical injuries. We disagree.

The Supreme Court did not improvidently exercise its discretion by permitting the challenged amendment. Pursuant to CPLR 3025(b), leave to amend pleadings may be granted "at any time" and "shall be freely given upon such terms as may be just". Inasmuch as the plaintiffs did not demonstrate significant prejudice warranting the denial of the amendment (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164; Crawford v. Koloniaris, 199 A.D.2d 235, 605 N.Y.S.2d 718; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:6 at 356), the application for leave to amend was properly granted.

Similarly, we conclude that summary judgment was properly awarded in favor of the defendants on the basis of the release. It is firmly established that "a general release is governed by principles of contract law" and "the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake, must be established or else the release stands" (Mangini v. McClurg, 24 N.Y.2d 556, 562, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386). The plaintiffs have come forward with no evidence demonstrating any of the foregoing grounds for invalidating the release (see, e.g., Martino v. Kaschak, 208 A.D.2d 698, 617 N.Y.S.2d 529). Rather, they argue that Mr. Best believed and intended that the release would pertain only to his property damage claim and would not bar a claim for personal injuries. However, the plain and unmistakable terms of the release refute this contention by expressly releasing the defendants from claims for bodily and personal injuries (see, Romero v. Khanijou, 212 A.D.2d 769, 623 N.Y.S.2d 262; DeQuatro v. Zhen Yu Li, 211 A.D.2d 609, 621 N.Y.S.2d 369). The law is clear that "one who executes a plain and unambiguous release cannot avoid its effect by merely stating that [he] misinterpreted its terms" (Koster v. Ketchum Communications, 204 A.D.2d 280, 611 N.Y.S.2d 298; see, Cortino v. London Terrace Gardens, 170 A.D.2d 305, 566 N.Y.S.2d 28; Touloumis v. Chalem, 156 A.D.2d 230, 548 N.Y.S.2d 493). Likewise, "[w]here, as here, the language with respect to the parties' intent is clear and unambiguous, it will be given effect, regardless of one party's claim that he intended something else" (Thailer v. LaRocca, 174 A.D.2d 731, 733, 571 N.Y.S.2d 569).

The plaintiffs further attempt to avoid the effect of the release by claiming that Mr. Best did not read the document prior to signing it. However, the failure to read an instrument prior to execution has long been held a legally unacceptable basis for refusing to abide by its terms (see, Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 537 N.Y.S.2d 787, 534 N.E.2d 824; Florence v. Merchants Cent. Alarm Co., 51 N.Y.2d 793, 433 N.Y.S.2d 91, 412 N.E.2d 1317; Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530), a principle which has been applied with equal vigor in cases involving releases (see, e.g., Romero v. Khanijou, 212 A.D.2d 769 623 N.Y.S.2d 262, supra; Martino v. Kaschak, 208 A.D.2d 698, 617 N.Y.S.2d 529, supra; Sofio v. Hughes, 162 A.D.2d 518, 556 N.Y.S.2d 717; Touloumis v. Chalem, 156 A.D.2d 230, 548 N.Y.S.2d 493, supra).

Notwithstanding the established law in this area, the dissent agrees with the plaintiffs' argument that the parties may have intended the release to apply only to claims for property damage. The dissent finds purported "evidence" of such a mutual mistake in the following circumstances: the release was executed some 28 days after the accident, Mr. Best was not represented by counsel at the time of execution, the instrument appears to have been hastily prepared, the settlement amount seems more consistent with a compromise of a property damage claim than a personal injury claim, Mr. Best may have suffered some type of physical injury, and the defendants requested certain information regarding the alleged injury as late as 1991. We find that these factors, whether considered individually or collectively, fall woefully short of raising a question of fact regarding mutual mistake. The fact that Mr. Best was not represented by counsel at the time he signed the release is of no moment, since the defendants did nothing to discourage such legal representation and "there is no evidence in the record that [he] could not have consulted with [his] attorney before executing the release, had [he] chosen to do so" (Romero v. Khanijou, supra at 770, 623 N.Y.S.2d 262). Similarly, the facts that the release was executed approximately one month after the accident and was for a relatively small amount of money hardly suggest a mutual mistake. Rather, as the Court of Appeals has observed:

"It requires particular emphasis that, more often than not, the releasors in personal injury cases are willing to settle for relatively small sums, or sums that do not discount injuries unknown at the time because of the doubtful liability of the releasee, even when ordinary caution would suggest awaiting the development of unknown injuries or consequences. When that is the inducement it would be false reasoning to assume that the amount of the settlement or the precipitousness of effecting the settlement is corroborative of a mutual mistake" (Mangini v. McClurg, 24 N.Y.2d 556, supra at 564, 301 N.Y.S.2d 508, 249 N.E.2d 386, emphasis supplied).

Furthermore, while the record contains no evidence indicating that Mr. Best suffered any accident-related injury, this issue is in any event irrelevant since he has never premised his "mutual mistake" contention upon the existence of any injury which was unknown at the time he executed the release. Of course, "[i]f the injury [was] known, and the mistake * * * [was] merely as to the consequence, future course, or sequelae of a known injury, then the release will stand" (Mangini v. McClurg, supra at 564, 301 N.Y.S.2d 508, 249 N.E.2d 386; see, Romero v. Khanijou, supra; DeQuatro v. Zhen Yu Li, supra; cf., Carola v. NKO Contr. Corp., 205 A.D.2d 931, 613 N.Y.S.2d 497; Horn v. Timmons, 180 A.D.2d 717, 580 N.Y.S.2d 364). Likewise, the mere circumstance that the defendants' carrier continued to correspond with Mr. Best's former attorney regarding Mr. Best's claimed injury subsequent to the execution of the release fails to demonstrate that the defendants believed the release covered only property damage. Indeed, this correspondence is indicative of nothing more than the carrier's performance of a fair and cautious investigation of all claims made by Mr. Best.

The plaintiffs' claims of misrepresentation and fraud, belatedly raised on appeal, are similarly unsubstantiated. Significantly, they have never identified the alleged misrepresentation or the person by whom it was made. Additionally, in their papers in the Supreme Court, the plaintiffs expressly eschewed any belief that a fraud occurred, and their impermissibly vague claim of fraud on this appeal is patently disingenuous. At...