Green v. Lake Placid 1980 Olympic Games, Inc.

• Decision Date: 23 February 1989
• Citation: 147 A.D.2d 860,538 N.Y.S.2d 82
• Parties: Edward V. GREEN et al., Appellants, v. LAKE PLACID 1980 OLYMPIC GAMES, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 82

538 N.Y.S.2d 82

147 A.D.2d 860

Edward V. GREEN et al., Appellants, v. LAKE PLACID 1980 OLYMPIC GAMES, INC., Respondent.

Supreme Court, Appellate Division Third Department.

Feb. 23, 1989.

Aswad & Ingraham (Richard N. Aswad, of counsel), Binghamton, N.Y., for appellants.

Bartlett, Pontiff, Stewart, Rhodes & Judge (Richard J. Bartlett, of counsel), Glens Falls, N.Y., for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Appeal (1) from that part of an order of the Supreme Court (Dier, J.), entered February 1, 1988 in Essex County, which, inter alia, partially granted defendant's cross motion for summary judgment by dismissing the complaint of plaintiff Edward V. Green and granting judgment on defendant's counterclaim against plaintiff Edward V. Green Enterprises, Inc., and (2) from the judgment entered thereon.

Plaintiff Edward V. Green Enterprises, Inc. (hereinafter Green Enterprises) and defendant entered into an agreement in December 1979 which obligated Green Enterprises, a talent-booking agent, to engage entertainers to perform for the athletes at the 1980 Winter Olympic games and provided, inter alia, that defendant would reimburse Green Enterprises for reasonable expenses incurred in connection with its services. Green Enterprises and defendant entered into an additional agreement in February 1980 which authorized Green Enterprises to develop and produce a television musical variety special, in exchange for which it was to pay defendant 10% of net income from the project, with a guaranteed minimum fee of $50,000, due and payable no later than April 24, 1980.

In April 1980, Green Enterprises commenced an action against defendant to recover $57,100.25, alleged to be owed for unreimbursed expenses under the first contract. This claim was initially disputed but, after Green Enterprises' compliance with a request for further substantiation of certain expenses incurred, was ultimately settled in October 1982 for the full amount sought, exclusive of interest, costs or disbursements. The release specifically incorporated a December 1981 letter to creditors and repayment plan ¹ and recited that the subject claim was $57,100.25. It further provided:

The undersigned hereby acknowledges and accepts the terms of the Plan and agrees to accept its distribution as provided for therein in full and complete settlement, satisfaction and discharge of any and all claims of any kind or nature that it has or may have against [defendant].

In May 1983, Green Enterprises and its principal, plaintiff Edward Green, commenced the present action seeking damages of $2,250,000 arising out of the second contract, pleading causes of action in breach of contract and quantum meruit. Defendant's answer asserted, inter alia, affirmative defenses of accord and satisfaction and release and a counterclaim against Green Enterprises to recover $50,000, alleged to be due and payable as its minimum fee under the contract. Plaintiffs moved for partial summary judgment striking the affirmative defenses; defendant cross-moved for summary judgment dismissing the complaint and for the relief demanded in the counterclaim. Supreme Court determined that the release executed in connection with settlement of the prior action barred plaintiffs' action as a matter of law and, accordingly, denied plaintiffs' motion. ² It granted defendant summary judgment dismissing the complaint of Green but denied the motion as to Green Enterprises, although it determined that this action was "moot". Finally, it granted summary judgment for the relief demanded in the counterclaim against Green Enterprises but denied the motion as against Green. Plaintiffs appeal.

We conclude that Supreme Court properly granted summary judgment dismissing the complaint of Green and the counterclaim asserted against him since he was not a party to the contract forming the basis for the actions. However, we find error in the balance of Supreme Court's determination. In our view, the October 1982 release executed by Green Enterprises is by no means free from ambiguity, and a factual issue exists as to whether the parties intended that it bar the present action.

Well settled is the rule of law that:

A release may contain specific recitals as to the claims being released, and yet conclude with an omnibus clause to the effect that the releasor releases and discharges all claims and demands whatsoever which he or his heirs, executors, administrators, or assigns have or may have against the releasee. In such situations, the courts have often applied the rule of ejusdem generis, and held that the general words of a release are limited by the recital of a particular claim, where there is nothing on the face of the instrument,...