Ming Long Liu v Kirkwood

Ming Long Liu v Kirkwood 2023 NY Slip Op 06522 Decided on December 20, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
LILLIAN WAN
CARL J. LANDICINO, JJ.
2021-06399
(Index No. 725439/20)

[*1]Ming Long Liu, et al., respondents,

v

Mary K. Kirkwood, appellant.

Pillinger Miller Tarallo, LLP, Elmsford, NY (Robert J. Gironda and Emily Mann of counsel), for appellant.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), dated July 28, 2021. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiffs commenced this action against the defendant to recover damages, inter alia, for personal injuries the plaintiff Ming Long Liu alleged that he sustained when a vehicle he was operating was involved in an accident with a vehicle operated by the defendant. The defendant subsequently moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7), on the ground that Ming Long Liu had previously commenced an action against the defendant to recover damages for personal injuries arising out of the same motor vehicle accident and that Ming Long Liu allegedly executed a release of all claims against the defendant arising out of the accident in exchange for payment of $150,000. In an order dated July 28, 2021, the Supreme Court denied the defendant's motion. The defendant appeals.

"A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of [a] release" (id. § 3211[a][5]). "A release is a contract, and its construction is governed by contract law" (Kaminsky v Gamache, 298 AD2d 361, 361; see Rivera v Wyckoff Hgts. Med. Ctr., 113 AD3d 667, 670). "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 NY2d 934, 935; see Sacchetti-Virga v Bonilla, 158 AD3d 783, 784). Generally, "a valid release constitutes a complete bar to an action on a claim which is the subject of the release" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [internal quotation marks omitted]; see Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d 833, 833). "A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake" (Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d at 833 [internal quotation marks omitted]; see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d at 276; Mangini v McClurg, 24 NY2d 556, 563). "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden . . . 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 NY3d at 276 [internal [*2]quotation marks omitted]; see Cames v Craig, 181 AD3d 851, 852).

Here, in support of her motion to dismiss the complaint, the defendant submitted, inter alia, a copy of a release signed by Ming Long Liu, which, by its terms, barred the plaintiffs from pursuing the instant action against the defendant (see Sacchetti-Virga v Bonilla, 158 AD3d at 784; Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d at 834).

In opposition, however, the plaintiffs' allegations were sufficient to raise questions of fact as to whether the release was a product of fraud or illegality, as Ming Long Liu alleged, inter alia, that he did not consent to the settlement offer of $150,000 and never signed anything agreeing to settle the case for $150,000 (see Sacchetti-Virga v Bonilla, 158 AD3d at 784; Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d at 834; Lopez v 121 St. Nicholas Ave. H.D.F.C., 28 AD3d 429, 430). Accordingly, the Supreme Court properly denied dismissal of the complaint pursuant to CPLR 3211(a)(5) as barred by the release (see Sacchetti-Virga v Bonilla, 158 AD3d at 785; Pacheco v 32-42 55th St. Realty, LLC, 139 AD3d at 834; Lopez v 121 St. Nicholas Ave. H.D.F.C., 28 AD3d at 430).

The Supreme Court also properly denied dismissal of the complaint pursuant to CPLR 3211(a)(1) and (7). Inasmuch as the plaintiffs raised issues of fact regarding the enforceability of the release, it cannot be said that "the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see CPLR 3211[a][1]). Additionally, the evidentiary material did not establish that the plaintiffs do not have a cause of action upon which relief may be granted, and that a material fact claimed by the plaintiffs is not a fact at all and no significant dispute exists regarding it (see Delric Constr. Co., Inc. v New York City Sch. Constr. Auth., 204 AD3d 750, 753; see also CPLR 3211[a][5]).

DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court