Pacheco v. 32-42 55th St. Realty, LLC, 2015-02587, Index No. 9773/14.

• Decision Date: 11 May 2016
• Docket Number: 2015-02587, Index No. 9773/14.
• Citation: 33 N.Y.S.3d 301,2016 N.Y. Slip Op. 03727,139 A.D.3d 833
• Parties: Galo PACHECO, appellant-respondent, v. 32–42 55TH STREET REALTY, LLC, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

139 A.D.3d 833

33 N.Y.S.3d 301

2016 N.Y. Slip Op. 03727

Galo PACHECO, appellant-respondent,

v.32–42 55TH STREET REALTY, LLC, et al., respondents-appellants.

2015-02587, Index No. 9773/14.

Supreme Court, Appellate Division, Second Department, New York.

May 11, 2016.

Gorayeb & Associates, P.C. (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant-respondent.

Warren S. Hecht, Forest Hills, N.Y., for respondents-appellants.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN ROBERT J., MILLER COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered February 3, 2015, as denied his cross motion, in effect, to preclude the defendants from asserting an affirmative defense based on a general release, and the defendants cross-appeal from so much of the same order as denied that branch of their motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by a general release.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff allegedly sustained personal injuries when he fell from a scaffold while he was working at a construction site. The plaintiff commenced this action against the defendants alleging, inter alia, violations of Labor Law §§ 200 and 240(1). The defendants subsequently moved to dismiss the complaint pursuant to, inter alia, CPLR 3211(a)(5) on the ground that the action was barred by a general release. The plaintiff opposed the motion and cross-moved, in effect, to preclude the defendants from asserting an affirmative defense based on the general release. In the order appealed from, the Supreme Court denied the defendants' motion and the plaintiff's cross motion. The plaintiff appeals, and the defendants cross-appeal.

“A release is a contract, and its construction is governed by contract law” (Kaminsky v. Gamache, 298 A.D.2d 361, 361, 751 N.Y.S.2d 254 ; see Rivera v. Wyckoff Hgts. Med. Ctr., 113 A.D.3d 667, 670, 978 N.Y.S.2d 337 ). In general, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release” (Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 [internal quotation marks omitted] ). “A release may be invalidated, however, for any of ‘the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake’ ” (id. at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386 ; see Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208 ). Moreover, there is a requirement that a release covering both known and unknown injuries be “ ‘fairly and knowingly made’ ” (Mangini v. McClurg, 24 N.Y.2d at 566, 301 N.Y.S.2d 508, 249 N.E.2d 386, quoting Farrington v. Harlem Sav. Bank, 280 N.Y. 1, 4, 19 N.E.2d 657 ; see Powell v. Adler, 128 A.D.3d 1039, 1040, 10 N.Y.S.3d 306 ).

“A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that ... the cause of action may not be maintained because of ... [a] release” (CPLR 3211[a] [5] ). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” (Farber v. Breslin, 47 A.D.3d 873, 877, 850 N.Y.S.2d 604 ; see Warmhold v. Zagarino, 106 A.D.3d 994, 995, 965 N.Y.S.2d 359 ; Storman v. Storman, 90 A.D.3d 895, 898, 935 N.Y.S.2d 63 ; Steen v. Bump, 233 A.D.2d 583, 584, 649 N.Y.S.2d 731 ; see also Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 217, 371 N.Y.S.2d 884, 333 N.E.2d 163 ; cf. Booth v. 3669 Delaware,

92 N.Y.2d 934, 935, 680 N.Y.S.2d 899, 703 N.E.2d 757 ).

Here, in support of their motion to dismiss the complaint, the defendants submitted a general release executed by the plaintiff, which, by its terms, barred the instant action against them (see Davis v. Rochdale Vil., Inc., 109 A.D.3d 867, 867, 971 N.Y.S.2d 340 ). However, the plaintiff's allegations were nevertheless sufficient to support a possible finding that the defendants procured the release by means of fraud and that the release was signed by the plaintiff “ ‘under circumstances which indicate unfairness' ” (Farber v. Breslin, 47 A.D.3d at 877, 850 N.Y.S.2d 604, quoting Gibli v. Kadosh, 279 A.D.2d 35, 41, 717 N.Y.S.2d 553 ; see Farrington v. Harlem Sav. Bank, 280 N.Y. at 3–4, 19 N.E.2d 657 ; Boxberger v. New York, New Haven & Hartford R.R. Co., 237 N.Y. 75, 78, 142 N.E. 357 ; Powell v. Adler, 128 A.D.3d at 1040, 10 N.Y.S.3d 306 ; Fuentes v. Aluskewicz, 25 A.D.3d 727, 728, 808 N.Y.S.2d 739 ; Scheer v. Long Is. R.R. Co., 282 App.Div. 724, 724, 122 N.Y.S.2d 217 ). Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the release (see Warmhold v. Zagarino, 106 A.D.3d at 995, 965 N.Y.S.2d 359 ; Storman v. Storman, 90 A.D.3d at 898, 935 N.Y.S.2d 63 ).

The Supreme Court also properly denied the plaintiff's cross motion, in effect, to preclude the defendants from asserting an affirmative defense based on the general release. The plaintiff's submissions in support of his cross motion were sufficient to establish, prima facie, that the release was unenforceable due to fraud in the procurement of the release and on the ground that it was not fairly and knowingly made (see Powell v. Adler, 128 A.D.3d at 1040, 10 N.Y.S.3d 306 ; Fuentes v. Aluskewicz, 25 A.D.3d at 728, 808 N.Y.S.2d 739 ; see also Farrington v. Harlem Sav. Bank, 280 N.Y. at 3–4, 19 N.E.2d 657 ; Boxberger v....