Fruchthandler v. Green

• Decision Date: 19 November 1996
• Parties: Abraham H. FRUCHTHANDLER, etc., Plaintiff-Appellant, v. Israel GREEN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 694

649 N.Y.S.2d 694

233 A.D.2d 214

Abraham H. FRUCHTHANDLER, etc., Plaintiff-Appellant, v. Israel GREEN, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 19, 1996.

Jonathan David Bachrach, for Plaintiff-Appellant.

Sheldon Eisenberger, for Defendant-Respondent.

Before SULLIVAN, J.P., and ELLERIN, NARDELLI, TOM and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about July 7, 1995, which, inter alia, granted defendant's motion to dismiss the amended complaint for failure to state a cause of action, unanimously affirmed, with costs.

Deeming the allegations in the amended complaint to be true and affording plaintiff the benefit of all favorable inferences and implications that may be drawn from the amended complaint (Underpinning & Found. Constructors v. Chase Manhattan Bank, 46 N.Y.2d 459, 414 N.Y.S.2d 298, 386 N.E.2d 1319), it was properly dismissed for failure to state a cause of action since the release plaintiff executed relieved defendant from liability under two promissory notes, and the allegations that such release was procured through economic duress were insufficient (cf., Bloss v. Va'ad Harabonim, 203 A.D.2d 36, 610 N.Y.S.2d 197; Wilf v. Halpern, 194 A.D.2d 508, 599 N.Y.S.2d 579, lv dismissed 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519). To succeed on a duress theory, plaintiff would have to show he was compelled to agree to the terms of the release by means of a wrongful threat which precluded the exercise of his free will (Muller Constr. Co. v. New York Tel. Co., 40 N.Y.2d 955, 390 N.Y.S.2d 817, 359 N.E.2d 328). On its face, however, the record reveals that the release resulted from vigorous bargaining tactics which do not amount to economic duress (Kenneth D. Laub & Co. v. Domansky, 172 A.D.2d 289, 568 N.Y.S.2d 601), notwithstanding financial considerations which may have induced plaintiff to enter into the agreement (Bethlehem Steel Corp. v. Solow, 63 A.D.2d 611, 405 N.Y.S.2d 80; Walbern Press v. C.V. Communications, 212 A.D.2d 460, 622 N.Y.S.2d 951). Moreover, at the time the release was entered into, defendant surrendered his partnership interest in certain properties to plaintiff. Having accepted the benefits of the agreement before commencing this action, plaintiff, in effect, ratified the release and is therefore barred from alleging economic duress in its execution (Benjamin Goldstein Prods. v. Fish, 198 A.D.2d 137, 138, 603 N.Y.S.2d 849...