Bloss v. Va'ad Harabonim of Riverdale

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSENBERGER
• Citation: Bloss v. Va'ad Harabonim of Riverdale, 610 N.Y.S.2d 197, 203 A.D.2d 36 (N.Y. App. Div. 1994)
• Decision Date: 05 April 1994
• Parties: Bonnie BLOSS, et al., Plaintiffs-Appellants, v. VA'AD HARABONIM OF RIVERDALE, et al., Defendants-Respondents.

Page 197

610 N.Y.S.2d 197

203 A.D.2d 36

Bonnie BLOSS, et al., Plaintiffs-Appellants, v. VA'AD HARABONIM OF RIVERDALE, et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

April 5, 1994.

As Amended July 14, 1994.

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Anita Florio, J.), entered April 5, 1993, which, inter alia, granted the defendants' motion and cross motions for summary judgment dismissing the complaint, unanimously reversed, as limited by the briefs, on the law, the motion and cross motions are denied, the complaint is reinstated, and the matter is remitted to the Supreme Court for further proceedings, without costs.

In June of 1985, the plaintiff Bloss, owner of Riverdale Glatt, Inc., a retail Kosher butcher business, sought Kosher sanctioning and supervision from the defendant Va'ad Harabonim of Riverdale ("Va'ad"), without which observant Jewish customers would likely refuse to patronize her store. The individual defendants are rabbis and assistant rabbis who comprised the Va'ad. Although the plaintiff was granted Kosher sanctioning in July of 1985, in 1991, she was informed that it was being terminated.

She then instituted this action for breach of implied contract, slander per se, intentional interference with prospective contractual relationships, interference with contract and intentional infliction of emotional distress. Bloss maintained that the Va'ad stripped her of the Kosher supervision in order to provide such supervision to her competitor, with whom members of the Va'ad had a special relationship. She further alleged that on July 6, 1991, the defendant Rosenblatt, speaking on behalf of the Va'ad, told a Riverdale Jewish Center that her supervision was being withdrawn because she was short weighting customers at her store on special orders and because she was of questionable honesty.

Due to the withdrawal of the certification, and, in order to stay in business, the plaintiff sought Kosher supervision from the Circle K organization, which she contended, failed to abide by an oral agreement to supervise her after the defendants pressured it into reneging. She thereafter contracted with another organization which also allegedly failed to honor its agreement after being contacted by the defendants. Because of the defendants' actions, the plaintiff contended that she was forced to sell her business at a loss.

The defendants moved and cross moved, pursuant to CPLR 3211 and 3212, to dismiss the complaint on the basis, inter alia, of a release executed by the plaintiff on August 1, 1991, in which she agreed to release and discharge members of the Va'ad from liability relating to the removal of the certification. The Supreme Court, concluding that all the defendants were seeking summary judgment, granted them such relief and dismissed the complaint. The court found the release valid and enforceable since the plaintiff was represented by counsel at the time of its execution.

We note initially that the Supreme Court properly interpreted the motion and cross motions as deliberately charting a summary judgment course and, therefore, properly treated them as such (see, Mihlovan v. Grozavu, 72 N.Y.2d 506, 534 N.Y.S.2d 656, 531 N.E.2d 288; Four Seasons Hotels Ltd. v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1). While we also agree with the court's determination rejecting the plaintiff's contention that the release was invalid for lack of consideration (see, General Obligations Law § 15-303; Mergler v. Crystal Properties Assocs., 179 A.D.2d 177, 180, 583 N.Y.S.2d 229), it was error to grant the motion and cross motions to dismiss since questions of fact exist as to the procurement of the release.

A release, even though properly executed, may, nonetheless, be void (Fleming v. Ponziani, 24 N.Y.2d 105, 111, 299 N.Y.S.2d 134, 247 N.E.2d 114). Where fraud or duress in the procurement of a release is alleged, a motion to dismiss should be denied (see, Newin Corp. v. Hartford Acc. and Indem. Co., 37 N.Y.2d 211, 217, 371 N.Y.S.2d 884, 333 N.E.2d 163; Goldsmith v. National Container Corp., 287 N.Y. 438, 40 N.E.2d 242; Mergler v. Crystal Properties Assocs., supra; Touloumis v. Chalem, 156 A.D.2d 230, 548 N.Y.S.2d 493; Dunkin' Donuts of America v. Rovegno, 100 A.D.2d 532, 473 N.Y.S.2d 221; Anger v. Ford Motor Co., 80 A.D.2d 736, 437 N.Y.S.2d 165).

The function of the court upon a motion for summary judgment is issue finding not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). The plaintiff's detailed allegations concerning the circumstances leading up to the execution of the release, together with the conflicting affirmations submitted by both sides, preclude an award of summary judgment.

According to the defendant Rabbi Nachman Cohen, in the Spring of 1991, the Va'ad began receiving complaints from the plaintiff's customers that packages of meat prepared for special orders did not actually weigh as much as the price-weight labels. The Va'ad notified the on-site compliance monitor who thereafter checked the weights of the packages as did the Va'ad. According to Cohen's affidavit, however, although the Va'ad found that the weights of the special order packages checked at random matched the labels exactly, the Va'ad suspected that the monitor had compromised the investigation by informing the plaintiff of its existence. Since the Va'ad found that it could not properly monitor the plaintiff's butcher shop, it decided to revoke her certification.

Cohen added that in late July of 1991, the plaintiff asked the Va'ad to reconsider its decision. Although it declined to recertify the shop, the Va'ad agreed to assist the plaintiff in obtaining alternative certification and publicly to endorse the new certifying rabbi. On the advice of counsel, the plaintiff agreed to enter into a mutual release of liability with the Va'ad and its members whereby each party released the other from any claims of liability arising out of the events that transpired. Cohen maintained that the Va'ad abided by the agreement by helping the plaintiff obtain certification from a...