Ortega v Martinez
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Ortega v Martinez 2018 NY Slip Op 30514(U) February 5, 2018 Supreme Court, Queens County Docket Number: 710465/16 Judge: Leslie J. Purificacion Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: QUEENS COUNTY CLERK 02/15/2018 12:29 PM 1] INDEX NO. 710465/2016 .. NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 02/15/2018 NEW YORK SUPREME COURT - QUEENS COUNTY Present HONORABLE IA Part LESLIE J. PURIFICACION Justice --------------------------------------------------------)( JUAN ORTEGA and JUAN TORIS, Index Number 39 710465/16 Plaintiffs, -againstMotion Seq. REYNA MARTINEZ MARCHETTI, and #1 ADRIAN Defendants. --------------------------------------------------------)( The following papers numbered 1 to 12 read on this motion by defendant REYNA MARTINEZ to dismiss the complaint pursuant to CPLR 3211 (a)(5), and cross-motion by plaintiffs for an order nullifying and vacating signed general releases. PAPERS NUMBERED O.S.C., Aff., Exhibits and Service .............. . N.C\M., Aff., Exhibits and Service .............. . Opp./Reply and Service ............................. . Reply and Service ...................................... . 1-4 5-8 9-10 11-12 FILED FEB 1'5- ·2018 COUNTY CLERK QUEENS COUNTY Upon the foregoing papers, it is ordered that the motion and cross motion arE? decided as follows: Plaintiffs commenced this action on or about August 31, 2016, to recover for personal injuries allegedly sustained in a motor vehicle accident that occurred on May 3, 2016. Defendant Reyna Martinez now moves to dismiss the complaint on the grounds that on May 5, 2016, plaintiff Juan Toris executed a general release for the sum of $800.00, and on same date plaintiff Juan Ortega executed a general release for the sum of $750.00. Plaintiffs cross move for an order nullifying and vacating the 1 of 4 [*FILED: QUEENS COUNTY CLERK 02/15/2018 12:29 PM 2] NYSCEF DOC. NO. 45 INDEX NO. 710465/2016 RECEIVED NYSCEF: 02/15/2018 gener~l-releases on the grounds of fraud; misrepreser:itation, mutual mistake, duress ... and illegality. In support-· of the motion, movant submits, inter alia, copies .of the general releases as well as copies of the cash~d checks. In addition, movant.submits the sworn affidavits of Nailah Waters,and Gina Serrano; b.oth·of whom are employed by defendant's. insurance carrier. Ms. Waters stptes in her sworn, affidavif that she was the assigned claims representative for the ·matter and that on May. 5, 2016, she met with· plaintiffs Juan Ortega and Juan Toris for the purpose of interviewing them .. She further states that present at that time was Gina Serrano, another: employee o"f the·carrier, who translated the discussion from English to Spanish and Spanish to English. She-states that after a full discussion of the facts and circumstances of the accident and a negotiation for payment with each plaintiff, they signed the general releases after it was tran,slated to them from English to Spanish by Ms. Serrano .. In a sworn statement, Ms. SerranoLoiseau avers that she is .an employee of .defendant's insurance carrier and that on May 5, 2016, she accompanied Nailah Waters. to-,interview plaintiffs; that she translated the conversations as well as the general-leases that plaintiffs sign·ed in her presence and that each acknowledged ·that they wanted to ·settle their claims. Defendant asserts that J the general le?1ses are·binding and . the.compl~int must-be dismissed. Plaintiffs cross move to.nullify and vacate the releases on the grounds of fraud, misrepresentation, mutual mistake, duress and.-illegality. ln,support of the: motion, plaintiffs each submit an affidavit (inJ)oth .English. and Spanish witQ. translation) and various medical record~. ' -2'- 2 of 4 an affidavit of [*FILED: QUEENS COUNTY CLERK 02/15/2018 12:29 PM 3] NYSCEF DOC. NO. 45 INDEX NO. 710465/2016 RECEIVED NYSCEF: 02/15/2018 Plaintiff Juan Ortega states in his sworn affidavit that defendant'Reyna Martinez told him that he should speak to her lawyer who would help him. He states that on May 5, 2016, two women met with him in his home; one of which spoke English and the other translated in Spanish and who he believed were attorneys. He claims that he was told that if he did not have a social security number he had to sign [the release]. He further claims that he was not told that he would be waiving his right to sue for his injuries in exchange for the $750.00. He states that the release was not translated for him and that he would not have signed it had he known what it meant. He further avers that he qid fully realize the extent of his injuries until after the meeting, and claims that as a result of the accident he suffered a fracture to his sternum and herniations to his lumbar and thoracic spine. In an almost identically worded affidavit, plaintiff Juan Toris states he signed the release because he was told if he did not have a social security number he had to sign it; that he was not told he was waiving his right to sue in exchange for the $800.00; the release was not translated to him; and, he would not have signed it had he know what it meant. He also did not fully realize the extent of his injuries until after the meeting. As a result of the accident, he claims to have suffered tears to his left shoulder that required surgery, a tear to his right shoulder and left knee and injuries to his neck, back and right knee. "In general, a release will not be set aside in the absence of duress, illegality, fraud or mutual mistake" (Haynes v Garez, 304 AD2d 714, 715 (citations omitted)). "However, there is a requirement that a release covering both known and unknown injuries be 'fairly and knowingly made' (Id., citing Mangini v McClurg, 24 NY2d 556, 563, -3- 3 of 4 [*FILED: QUEENS COUNTY CLERK 02/15/2018 12:29 PM 4] NYSCEF DOC. NO. 45 INDEX NO. 710465/2016 RECEIVED NYSCEF: 02/15/2018 quoting Farrington vHarlem Sav. Bank, 280 NY 1,4). This requirement may be applied in situations 'failing far short of actual fraud' .such as when, 'because the releasor has had little time for investigation.or deliberation-, or because of·the.existence of · overreaching or unfair circumstances, it was deemed inequitable to .allow the release to a bar to the claim of an injured party .... (Mangini at 567). serve ,as Plaintiffs were approached by the insurance agents two days after the accident. befenoant supmits .no evidence that at that time the nature or extent of the plaintiffs' injuries.wer~ known. With respect to Mr. Ortega, purported herniations to his cervical .and·thoracic spine, as well as a fracture in his. mid sternum were first diagnosed. by MRI in May 2016. Similarly, MRI studies of Mr. Toris:conducted in May 2016,.reveal purported thoracic and cefllical herniations. MRI studies conducted in June 2016, reveal pur:ported"tears in both ivlr. Toris!s left and right shoulders and in his left knee. While neither plalt1tiff explains why he negotiated the check tendered to him, review of the checks indicat~~ no no.tations indicating it·was in ·full settlement of any claims ···# arising out of the accident.in· issue. Under these; circumstances, it appears· to the. court that it would be "inequitable to allow the release[s] to serve as a bar to" plaintiffs claims. The r.eleases are hereby .set asioe, on condition that plaintiffs, within 30 days of service upon them ofa copy ef this ordef'together with notice of entry, rep~y .the sums of money paid to them. . . Accordingly, the motion is denied· and the .cross motion gr~nted as _provided for· . ' .. ·herein. This is the·decision and order of the court. Date: February. 5, 2018 FILED Hon. Leslie J . .P1.irltk~acion, J.S.C: FEa l5.t2018 COUNTY CLERK QUEENS .CQ:UNTY . -4- 4 of 4 ~ . ' ' ~ .: . :J
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