- September 14, 2017
Marshall Dennehey Warner Coleman & Goggin, P.C.,
Melville, NY (Michael P. Kelly of counsel), for appellant
Joshua Robert Sonett.
Clearwater & Bell LLP, New York, NY (Barbara D. Goldberg
and Bruce G. Habian of counsel), for appellants New York
Presbyterian Hospital, Columbia University Medical Center,
Columbia Presbyterian Medical Center, Marc Bessler, Amy
Stevens, as executor of the estate of Peter D. Stevens, and
Waichman LLP, Port Washington, NY (Jay L. T. Breakstone of
counsel), for respondent.
REINALDO E. RIVERA, J.P. SHERI S. ROMAN JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.
DECISION & ORDER
action to recover damages for medical malpractice and lack of
informed consent, the defendant Joshua Robert Sonett appeals,
and the defendants New York Presbyterian Hospital, Columbia
University Medical Center, Columbia Presbyterian Medical
Center, Marc Bessler, Amy Stevens, as executor of the estate
of Peter D. Stevens, and Daniel Davis separately appeal, as
limited by their respective briefs, from so much of an order
of the Supreme Court, Kings County (Bunyan, J.), dated June
3, 2015, as denied those branches of their separate motions
which were pursuant to CPLR 3211(a) to dismiss the complaint
insofar as asserted against each of them.
that the order is affirmed insofar as appealed from, with one
bill of costs payable by the defendants appearing separately
and filing separate briefs.
November 2008, the plaintiff underwent an experimental
bariatric surgery, referred to as a transoral gastroplasty
procedure, at New York Presbyterian Hospital/Columbia
University Medical Center (hereinafter the hospital). The
procedure required the insertion of a device that was
developed and manufactured by nonparty Satiety, Inc.
(hereinafter Satiety). During the course of the procedure,
the plaintiff allegedly sustained a perforated esophagus and
subsequent medical complications. The plaintiff thereafter
commenced two actions, one in federal district court against
Satiety (hereinafter the Satiety action), and this action in
the Supreme Court, Kings County, against the defendants
herein, the hospital where the procedure was performed and
certain physicians. The Satiety action, which alleged, inter
alia, products liability, statutory violations, and other
state law tort claims, was ultimately dismissed for failure
to state a cause of action (seeBurgos v Satiety,
Inc., 2013 WL 801729, 2013 U.S. Dist LEXIS 31062 [ED NY,
March 5, 2013, No. 10-CV-2680 (MKB)]). After the dismissal of
the Satiety action, the plaintiff and Satiety entered into a
settlement and release agreement (hereinafter the Satiety
release), wherein the plaintiff discharged "all
claims" that arose out of the plaintiffs November 2008
procedure as against Satiety and, inter alia, all of
Satiety's "agents, . . . independent contractors,
representatives, . . . and all other related entities or
persons who can ever be liable for the Incident." Based
on the disposition of the Satierty action and the execution
of the Satiety release, the defendants in this action
separately moved, inter alia, to dismiss the complaint
pursuant to CLR 3211(a)(1), (5), and (7). The Supreme Court,
inter alia, denied those branches of the defendants'
motions, and the defendants appeal.
succeed on a motion to dismiss based upon documentary
evidence pursuant to CPLR 3211(a)(1), the documentary
evidence must utterly refute the plaintiffs factual
allegations, conclusively establishing a defense as a matter
of law" (Gould v Decolator, 121 A.D.3d 845,
847; see Goshen v Mutual Life Ins. Co. of N.Y., 98
N.Y.2d 314, 326; U.S. Mdse., Inc. v L&R Distribs,
Inc., 122 A.D.3d 613, 613-614). A settlement agreement
or release affecting a claim may be the basis for a CLR
3211(a)(1) motion to dismiss where the terms are clear and
unambiguous and conclusively dispose of the matter (see
Rudovic v Rudovic, 131 A.D.3d 1225, 1226;
Malarkey v Piel, 7 A.D.3d 681).
a motion to dismiss the complaint pursuant to CPLR 3211(a)(7)
for failure to state a cause of action, the court must afford
the pleading a liberal construction, accept all facts as
alleged in the pleading to be true, accord the plaintiff the
benefit of every possible inference, and determine only
whether the facts as alleged fit within any cognizable legal
theory" (Breytman v Olinville Realty, LLC, 54
A.D.3d 703, 703-704; see Leon vMartinez, 84 N.Y.2d
83, 87-88). However, where the moving party offers
evidentiary material, the court is required to determine
whether the proponent of the pleading has a cause of action,
not just whether he or she has stated one (see Pincus v
Wells, 35 A.D.3d 569, 570-571).
to CPLR 3211(a)(5), a cause of action may be dismissed
"because of . . . collateral estoppel . . . payment,
release, [and/or] res judicata." A valid release
"constitutes a complete bar to an action on a claim
which is the subject of the release" (Global Mins.
& Metals Corp. vHolme, 35 A.D.3d 93, 98; see
Centro Empresarial Cempresa S.A. v AmericaMovil, S.A.B. de
C.V., 17 N.Y.3d 269, 276). "A release is a
contract, and its construction is governed by contract
law" (Kaminsky v Gamache, 298 A.D.2d 361, 361).
If "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, citing Mangini v McClurg, 24 N.Y.2d 556,
563; see Desiderio v Geico Gen. Ins. Co., 107 A.D.3d
662, 663). Where the release is unambiguous, a court may not
look to extrinsic evidence to determine the parties'
intent (see Koufakis v Siglag, 85 A.D.3d 872, 873).
"Whether or not a writing is ambiguous is a question of
law to be resolved by the courts" (W.W.W. Assoc. v
Gioncontieri, 77 N.Y.2d 157, 162; see Sicuranza v
Philip Howard Apts. Tenants Corp., 121 A.D.3d 966, 967).
A defendant bears the initial burden of establishing that he
or she has been released from any claims (see Centro
Empresarial Cempresa S.A. v AmericaMovil, S.A.B. deC.V.,
17 N.Y.3d at 276).
although the terms of the Satiety release are clear and
unambiguous (see Wells v Shearson Lehman/American
Express, 72 N.Y.2d 11, 22-23; Fiakpoey v
Middlesworth, 118 A.D.3d 743, 745; Tedesco v
Triborough Bridge & Tunnel Auth., 250 A.D.2d 758),
the defendants failed to establish that they fell within the
defined group of releasees as a matter of law (cf.
Fiakpoey v Middlesworth, 118 A.D.3d at 745; Tedesco
v Triborough Bridge & Tunnel Auth., 250 A.D.2d at
758). The Supreme Court therefore properly denied those
branches of the defendants' motions to dismiss which were
based on the defense of valid release.
the doctrine of res judicata, a final judgment precludes
reconsideration of all claims which could have or should have
been litigated in the prior proceedings against the same
party" (Breslin Realty Dev. Corp. v Shaw, 72
A.D.3d 258, 263; see Goldman v Rio,104 A.D.3d 729,
730). Under the related doctrine of collateral estoppel,
relitigation of an issue which has necessarily been decided
in a prior action and is determinative of the issues disputed
in the present action is precluded provided that there was a
full and fair opportunity to contest the decision now alleged
to be controlling (see Capellupo v Nassau Health Care
Corp.,97 A.D.3d 619, 621; Breslin Realty Dev. Corp.
v Shaw, 72 A.D.3d at 263). Here, the evidence submitted
by the defendants failed to conclusively establish that there
was identity of the parties and the issues such that the
Satiety action had ...