Sacchetti-Virga v. Bonilla

• Decision Date: 21 February 2018
• Docket Number: Index No. 7980/15,2016–05220
• Citation: 158 A.D.3d 783,73 N.Y.S.3d 194
• Parties: Rosemarie SACCHETTI–VIRGA, respondent, v. Freddy A. BONILLA, et al., appellants.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 783

73 N.Y.S.3d 194

Rosemarie SACCHETTI–VIRGA, respondent,

v.Freddy A. BONILLA, et al., appellants.

2016–05220

Index No. 7980/15

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

Submitted—November 6, 2017

February 21, 2018

Morris Duffy Alonso & Faley, New York, N.Y. (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellants.

Stephan Persoff, Carle Place, NY, for respondent.

SHERI S. ROMAN, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 7, 2016, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

On June 15, 2015, the plaintiff allegedly sustained personal injuries as a result of a motor vehicle accident in which her vehicle was struck in the rear by a vehicle owned by the defendant Rosa Bonilla and operated by the defendant Freddy A. Bonilla. Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries. After issue was joined, the defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the plaintiff allegedly executed a release of all claims against them arising out of the accident in exchange for a payment of $1,500. In the order appealed from, the Supreme Court denied the defendants' motion. We affirm.

" ‘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, 432, 911 N.Y.S.2d 292 ; see Centro Empresarial Cempresa S.A. v. América Movíl, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ; Patti Constr. Corp. v. 111–16 Atl. Ave. Realty Corp., 119 A.D.3d 756, 757, 989 N.Y.S.2d 337 ). Where "the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties" ( Booth v. 3669 Delaware, 92 N.Y.2d 934, 935, 680 N.Y.S.2d 899, 703 N.E.2d 757, quoting Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386 ), and "the intent of the parties must be ascertained from the plain language of the agreement" ( Kaminsky v. Gamache, 298 A.D.2d at 361, 751 N.Y.S.2d 254 ; see Schiller v. Guthrie, 102 A.D.3d at 853–854, 958 N.Y.S.2d 736 ).

"In resolving a motion for dismissal pursuant to CPLR 3211(a)(5), the plaintiff's allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light" (see Ford v. Phillips, 121 A.D.3d 1232, 1234, 994 N.Y.S.2d 688 ). "A party may move for judgment dismissing one or more causes of action asserted against him 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 ).

Here, in support of their motion to dismiss the complaint, the defendants submitted an affidavit of their insurance carrier's claims representative and a copy of the release signed by the plaintiff, which, by its terms, barred the instant action against them (see Pacheco v. 32–42 55th St. Realty, LLC, 139 A.D.3d 833, 834,...