Achache v Och

Achache v Och 2015 NY Slip Op 04386 Decided on May 21, 2015 Appellate Division, First 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 May 21, 2015
Tom, J.P., Friedman, DeGrasse, Richter, JJ.
650737/12 15178 15177

[*1] Arnaud C. Achache, et al., Plaintiffs-Appellants,

v

Daniel Och, et al., Defendants-Respondents.

Garvey Schubert Barer, New York (Andrew J. Goodman of counsel), for appellants.

Debevoise & Plimpton LLP, New York (Edwin G. Schallert of counsel), for respondents.

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 14, 2014, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 13, 2014, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court correctly found that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress (see e.g. Leader v Dinkler Mgt. Corp., 26 AD2d 683 [2d Dept 1966], affd 20 NY2d 393 [1967]). Plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period (see Austin Instrument v Loral Corp., 29 NY2d 124, 133 [1971]; Sosnoff v Carter, 165 AD2d 486, 492 [1st Dept 1991]). However, they delayed an additional 10 months beyond those two years (see Leader, 26 AD2d at 683 [six-month delay waived claim of duress]).

Assuming arguendo that triable issues exist as to unconscionability and overreaching (see CPLR 3211[c]), plaintiffs' ratification of the release bars them from challenging it on those grounds (see Allen v Riese Org., Inc., 106 AD3d 514, 517 [1st Dept 2013]). Plaintiffs' claim that they received no benefits at all from the separation agreement and release is belied by the record.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 21, 2015

CLERK