Davis v Rochdale Vil., Inc.

Davis v Rochdale Vil., Inc. 2013 NY Slip Op 05874 Decided on September 18, 2013 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 September 18, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2012-04708
(Index No. 700341/11)

[*1]Alma G. Davis, respondent,

v

Rochdale Village, Inc., et al., appellants.




Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina
of counsel), for appellants.
Kiley, Kiley & Kiley, PLLC, Great Neck, N.Y. (James D.
Kiley of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated April 16, 2012, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground of release.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint is granted.

In support of their motion to dismiss the complaint, the defendants submitted a release executed by the plaintiff, which, by its terms, barred the instant action against them (see CPLR 3211[a][5]; Schiller v Guthrie, 102 AD3d 852; Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C.,55 AD3d 592). " A release is a contract, and its construction is governed by contract law'" (Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d 960, 962, quoting Lee v Boro Realty, LLC, 39 AD3d 715, 716; see Kaminsky v Gamache, 298 AD2d 361, 361). "A release may be invalidated . . . for any of the traditional bases for setting aside written agreements'" (Centro Empresarial Cempresa S.A. v Amêrica Môvil, S.A.B. de C.V., 17 NY3d 269, 276, quoting Mangini v McClurg, 24 NY2d 556, 563). However, "a signed release shifts the burden of going forward . . . 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 Amêrica Môvil, S.A.B. de C.V., 17 NY3d at 276, quoting Fleming v Ponziani, 24 NY2d 105, 111; see Haynes v Garez, 304 AD2d 714, 715; Shklovskiy v Khan, 273 AD2d 371, 372).

Here, the plaintiff failed to demonstrate that there was fraud, duress, or some other fact sufficient to void the release. There is no merit to the plaintiff's contention that she lacked the mental capacity to enter into the release, and she failed to come forward with any valid excuse for failing to read the release prior to signing it (see Matter of Augustine v BankUnited FSB, 75 AD3d 596, 597; Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788). In addition, the language of the release was clear and unambiguous, and the plaintiff's conclusory and unsubstantiated claim that she intended the release to only apply to her medical expenses, rather than to any claim for personal [*2]injuries, is insufficient to set aside the release (see Lee v Boro Realty, LLC, 39 AD3d 715).

Accordingly, the release should have been given effect, and the Supreme Court should have granted the defendants' motion to dismiss the complaint (see Centro Empresarial Cempresa S.A. v Amêrica Môvil, S.A.B. de C.V., 17 NY3d at 277-280).
ANGIOLILLO, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court