Slabakis v Poyiadjis

Slabakis v Poyiadjis 2021 NY Slip Op 05110 Decided on September 28, 2021 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 and Entered: September 28, 2021
Before: Webber, J.P., Mazzarelli, González, Scarpulla, Pitt, JJ.
Index No. 655855/18 Appeal No. 14193 Case No. 2020-04253

[*1]Angelo Slabakis, Plaintiff-Appellant,

v

Roys Poyiadjis et al., Defendants-Respondents.

Law Offices of Mario Biaggi Jr., New York (Mario Biaggi of counsel), for appellant.

Archer & Griener, P.C., New York (Anthony Dougherty and Bruce M. Gorman, Jr. of counsel), for respondents.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered on or about May 13, 2020, which, to the extent appealed from, granted the portion of defendants' motion to dismiss the amended complaint, unanimously reversed, on the law, without costs, and the amended complaint reinstated.

Whether the claims at issue were encompassed by the general release, which was a boilerplate release that did not describe in any detail the claims intended to be released, was an issue of fact that precluded dismissal (Cahill v Regan , 5 NY2d 292, 299 [1959]). Moreover, defendants failed to establish from the face of the pleading that they were entitled to assert the release.

Given plaintiff's description of the transaction as one in which he was buying back real property, and otherwise acting as a principal, it was not dispositively demonstrated that the contract at issue was barred by Ohio Rev. Code Ann. § 4735.02.

Although not properly before us, we note that plaintiff's cause of action in the original complaint for fraud was properly dismissed as duplicative of the contract claim (Richbell Info. Servs. v Jupiter Partners , 309 AD2d 288, 305 [1st Dept 2003]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: September 28, 2021