Powell v. Adler

• Decision Date: 27 May 2015
• Docket Number: 2014-08885
• Citation: 128 A.D.3d 1039,2015 N.Y. Slip Op. 04466,10 N.Y.S.3d 306
• Parties: Hermine POWELL, respondent, v. Meryl ADLER, et al., appellants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1039

10 N.Y.S.3d 306

2015 N.Y. Slip Op. 04466

Hermine POWELL, respondent

v.Meryl ADLER, et al., appellants.

2014-08885

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

May 27, 2015.

Adams, Hanson, Rego, Kaplan & Fishbein, Lake Success, N.Y. (Jacqueline Doody of counsel), for appellants.

Stern & Stern, P.C., Freeport, N.Y. (Jordan Stern of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), dated June 26, 2014, as denied that branch of their renewed motion which was for summary judgment dismissing the complaint.

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

The plaintiff allegedly was injured when she was involved in a motor vehicle accident with a vehicle owned by the defendant Meryl Adler and operated by the defendant Heather Adler. The plaintiff commenced this action against the defendants to recover damages for personal injuries. After issue was joined, the defendants made a renewed motion, inter alia, for summary judgment dismissing the complaint, on the ground that the plaintiff executed a release of all claims against them arising out of the alleged incident, in exchange for a payment of $3,000.

“ ‘A release is a contract, and its construction is governed by contract law’ ” (Cardinal Holdings, Ltd. v. Indotronix Intl. Corp., 73 A.D.3d 960, 962, 902 N.Y.S.2d 123, quoting Lee v. Boro Realty, LLC, 39 A.D.3d 715, 716, 832 N.Y.S.2d 453 ; see Davis v. Rochdale Vil., Inc., 109 A.D.3d 867, 971 N.Y.S.2d 340 ; Schiller v. Guthrie, 102 A.D.3d 852, 853, 958 N.Y.S.2d 736 ; Kaminsky v. Gamache, 298 A.D.2d 361, 361, 751 N.Y.S.2d 254 ). “Generally, ‘a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress' ” (Orangetown Home Improvements, LLC v. Kiernan, 84 A.D.3d 902, 903, 923 N.Y.S.2d 161, quoting Global Precast, Inc. v. Stonewall Contr. Corp., 78 A.D.3d 432, 911 N.Y.S.2d 292 ; see Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ).

“A signed release ‘shifts the burden of going forward ... to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release’ ” (Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Fleming v. Ponziani, 24 N.Y.2d 105, 111, 299 N.Y.S.2d 134, 247 N.E.2d 114 ; see Davis v. Rochdale Vil., Inc., 109 A.D.3d at 867, 971 N.Y.S.2d 340 ). “A plaintiff seeking to invalidate a release due to fraudulent inducement must ‘establish the basic elements of fraud, namely a representation of a material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury’ ” (Centro Empresarial Cempresa S.A. v. America Movil, S.A.B. de C.V., 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 98, 824 N.Y.S.2d 210 ). 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 556, 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 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting the affidavit of the insurance claims adjuster and a copy of the release signed by the plaintiff, which released the defendants from any and all claims or actions arising from the accident (see Matter of Singer v. Windfield, 125 A.D.3d 666, 3 N.Y.S.3d 381 ; Schiller v. Guthrie, 102 A.D.3d at 854, 958 N.Y.S.2d 736 ; Seff v. Meltzer, Lippe, Goldstein & Schlissel, P.C., 55 A.D.3d 592, 593, 865 N.Y.S.2d 323 ).

In opposition, however, the plaintiff raised a triable issue of fact (see Fuentes...