Zevin, Roslyn, NY, for appellant.
Rees Scully Mansukhani, LLP, New York, NY (Adam S. Furmansky
of counsel), for respondents.
E. CHAMBERS, J.P., SHERI S. ROMAN, ROBERT J. MILLER,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for violations of
General Business Law § 349, the plaintiff appeals from
an order of the Supreme Court, Nassau County (Iannacci, J.),
entered March 11, 2015, which granted that branch of the
defendants' motion which was pursuant to CPLR 3211(a)(5)
to dismiss the complaint as barred by a general release.
that the order is affirmed, with costs.
plaintiff rented a storage room at the defendant Arredondo
& Company, LLC, doing business as Westy Storage Centers,
Westy, and A Westy Storage Center (hereinafter Westy), at its
branch in Hicksville. A few years later, the plaintiff
commenced an action against Westy, the defendants Caesar A.
Arredondo, John A. Arredondo, and Edward C. Arredondo,
Westy's owners, and nonparty Yasir Zaidi, the manager of
the Hicksville branch (hereinafter collectively the 2011
defendants), alleging violations of General Business Law
§ 349 based on the improper increase of the rent for the
storage room for a period of time the plaintiff had already
paid for. The plaintiff and the 2011 defendants settled the
action in exchange for consideration, and the plaintiff
agreed to the terms of a general release and a contract
canceling the storage room lease and requiring that she empty
the contents of the storage room within two months. The
plaintiff vacated the storage room within the agreed-upon
time and left the room in its original condition. When the
plaintiff did not receive the security deposit she provided
at the start of the lease, she commenced the instant action
against the defendants, alleging violations of General
Business Law § 349. The defendants moved, inter alia,
pursuant to CPLR 3211(a)(5) to dismiss the complaint as
barred by the general release. The Supreme Court granted that
branch of the motion. The plaintiff appeals.
Supreme Court properly granted dismissal of the complaint
pursuant to CPLR 3211(a)(5). "A release is a contract,
and its construction is governed by contract law"
(Warmhold v Zagarino, 144 A.D.3d 672, 673 [internal
quotation marks omitted]; see Burnside 711 LLC v Amerada
Hess Corp., 109 A.D.3d 860, 861; Cardinal Holdings,
Ltd. v Indotronix Intl. Corp., 73 A.D.3d 960, 961).
"[A] release that is complete, clear, and unambiguous on
its face must be enforced according to the plain meaning of
its terms'" (Inter-Reco, Inc. v Lake Park 175
Froehlich Farm, LLC, 106 A.D.3d 955, 955, quoting
Alvarez v Amicucci, 82 A.D.3d 687, 688). "A
valid general release will apply not only to known claims,
but may encompass unknown claims, including unknown fraud
claims, if the parties so intend and the agreement is fairly
and knowingly made'" (Rivera v Wyckoff Hgts.
Med. Ctr., 113 A.D.3d 667, 670-671, quoting Centro
Empresarial Cempresa S.A. v America Movil, S.A.B. de
C.V., 17 N.Y.3d 269, 276 [internal quotation marks
omitted]; see Matter of Boatwright, 114 A.D.3d 856,
858). "[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" (Davis v Rochdale Vil., Inc.,
109 A.D.3d 867, 867 [internal quotation marks omitted];
see Sampson v Savoie, 90 A.D.3d 1382, 1383).
the release covers "all manner of action and actions,
cause and causes of action, suits, [and] sums of money...
whatsoever in law or in equity, known and unknown" that
the plaintiff "ever had, now has or... may have."
Contrary to the plaintiff's contention, the terms of the
release clearly and unambiguously encompass the causes of
action asserted in the instant action (see Centro
Empresarial Cempresa S.A. v America Movil, S.A.B. de
C.V., 17 N.Y.3d at 277; Inter-Reco, Inc. v Lake Park
175 Froehlich Farm, LLC, 106 A.D.3d at 956; see also
Rivera v Wyckoff Hgts. Med. Ctr., 113 A.D.3d at 671). In
addition, the plaintiff failed to sufficiently allege that
the release should be set aside due to, inter alia, fraud
(see Centro Empresarial Cempresa S.A. v America Movil,
S.A.B. de C.V., 17 N.Y.3d at 278; JGK Indus., LLC v
Hayes NY Bus., LLC, 145 A.D.3d 979, 980). Accordingly,
the Supreme Court properly granted that branch of the
defendants' motion which was to dismiss the complaint as
barred by the release.
CHAMBERS, J.P., ROMAN, MILLER and CONNOLLY, JJ., concur.
& ORDER ON MOTION
by the respondents, inter alia, to strike stated portions of
the appellant's reply brief on an appeal from an order of
the Supreme Court, Nassau County, entered March 11, 2015, on
the ground that they improperly raise an argument for the
first time in reply. By decision and order on motion of this
Court dated January 22, 2016, as amended February 1, 2016,
that branch of the motion was held in abeyance and referred
to the panel of Justices hearing the appeal for determination
upon the argument or submission thereof.
the papers filed in support of the motion and the papers
filed in opposition thereto, and upon the submission of the
appeal, it is
that the branch of the motion which is to strike stated
portions of the appellant's reply brief is granted, and
the portions of the appellant's reply brief beginning
with the second full paragraph on page 12 and continuing
through page 15 ...