Submitted - November 6, 2017
Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka
and Andrea M. Alonso of counsel), for appellants.
Stephan Persoff, Carle Place, NY, for respondent.
S. ROMAN, J.P. JOSEPH J. MALTESE HECTOR D. LASALLE BETSY
DECISION & ORDER
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
that the order is affirmed, with costs.
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.
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, quoting
Lee v Boro Realty, LLC, 39 A.D.3d 715, 716; see
Davis v Rochdale Vil., Inc., 109 A.D.3d 867;
Schiller v Guthrie, 102 A.D.3d 852, 853;
Kaminsky v Gamache, 298 A.D.2d 361, 361). 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, quoting
Global Precast, Inc. v Stonewall Contr. Corp., 78
A.D.3d 432, 432; see Centro Empresarial Cempresa S.A. V
America Movil, S.A.B. de C.V., 17 N.Y.3d 269, 276;
Patti Constr. Corp. v 111-16Atl. Ave. Realty Corp.,
119 A.D.3d 756, 757). 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, quoting
Mangini v McClurg, 24 N.Y.2d 556, 563), 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; see Schiller v
Guthrie, 102 A.D.3d at 853-854).
resolving a motion for dismissal pursuant to CPLR 3211(a)(5),
the plaintiffs 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). "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]). 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; see Warmhold v
Zagarino, 106 A.D.3d 994, 995; Storman v
Storman, 90 A.D.3d 895, 898).
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; Davis v Rochdale
Vil., Inc., 109 A.D.3d at 867; Schiller v
Guthrie, 102 A.D.3d at 854; Seff v Meltzer, Lippe,
Goldstein & Schlissel, P.C., 55 A.D.3d 592, 593). In
opposition, however, the plaintiff's allegations were
sufficient to raise a question of fact as to whether the
defendants procured the release by fraud, whether the release
was signed by the plaintiff under circumstances which
indicate unfairness, and whether it was "not fairly and
knowingly made" (Pacheco v 32-42 55th St. Realty,
LLC, 139 A.D.3d at 834 [internal quotation marks
omitted]; see Warmhold v Zagarino, 106 A.D.3d at
995; Fuentes v Aluskewicz, 25 A.D.3d 727, 728).
the Supreme Court properly denied the defendants' motion
pursuant to CPLR ...