Etheridge v Troia

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Etheridge v Troia 2018 NY Slip Op 33403(U) November 27, 2018 Supreme Court, Richmond County Docket Number: 151037/18 Judge: Wayne M. Ozzi 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. INDEX NO. 151037/2018 [*FILED: 1] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 SUPREME COURT OF THE STATEOFNEW YORK COUNTY OF RICHMOND . . . . -·---------------------------···············-·-------------~----X NABREETHERlbGE, Hon. Wayne.M, Ozzi Plaintiff, -againstSAMANTHA TROIA and ROBERT CAMPBELL, DECISION AND ORDER 151037/18 Mot Seq. 001,002 Defendants. ······-········-··----·-··-·-·--··-·--·-·····--------··--·'··-------•x The following·papers were .marked fully :submitted oh September 1. 5, 2018. Papers Numbered Defendant's Notice of)Vlotion and Affirmation in Support of Motion. .to. Dismiss with·ExhibitsAnnexed (dated Jup.e· 1,_2orn ...... , . ., ................... _. _____..... , ............... ._ Pl~iniiffs Affirmation in Opposition with Exhibits Ai:inexed (dated July 18,)018) ...................... • ........................................ .2 Defenda!1t's·Reply with .Exhibits· Annexe.ct (dated Augusi 1, 20f8) ..................~ .................................. ,.............. 3 De.fend.<l!lt Samantha Ttoia ni.oves for an.Order pursuant to GPLR321 l(a)(5) and .General Obligations Law 15-108 to ,dismiss the underlying action w.ifh prejudice because plaintiff had previously accepted a settlement_arid discharged defendant Troia.from any and all Claims. by signing a fully executed release with defendant Troia. 'Plaintiff opposes the motion, arguinwmistake o( as frauduient inducement. After a review of all papers submitted the qefendant's motion Is ·denied.for the reaSoris set forth. below: 1 of 6 INDEX NO. 151037/2018 [*FILED: 2] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 This a(:tion has its genesis'in a motor _vehicle aceident .that .occur:red on April 11, 2017 at approximate)y 2:00 p.m: at the intersection of Little Clove Road and Northern Boulevard in Staien Island, New York. The plaintiff was a passenger in a vehicle operated by Samantha "[roja that was involved in an accident. with the v_ehicle _being driven bydefendant Campbell. As a result of the accident, the_plaintiff.allegedly sustained serious personal injuries including a large ·labral tear,. significant. symptoms for a left labral tear; left knee patella. latah an.d left shoulder impingement.· As .a r.esult of these injuries, on May 25, 2017, plaintiff underwent a left hip. arthroscopy with labra! debridement and synovectomy._ On April 18, 2017, nine days after the accident, and prior to surgery, an insurance representative, one James Frisci.a,- from Progressive .Insurance Company on. behalf of defendantTroia, arrived at plaintiff~ home. and took pictures of the abrasions and lacerations to her left knee and left shin. Plaintiff. alleges that the representative told her that the highest settlement she could obtain was $ l ,500.00, and also advised her that the ...... . ,, '~he other passengers in her vehicle were paid to settle their claim(s)" (See, Exhibit A, attached to plaintiffs Opposition, Affidavit ofNabre Etheridge). That same day, plaintiff:signed and dated· a Full Release. of All Claims and Demands.that read in relevant part as follows: " .... It is understood and agreed that this settlement is in full compromise of a doubtful ,and di°sputed claim as to, ho th ,questions ·of iialiility the nature and ,extent of the injuries, and damages, and that neither this.release, the_ paymeri't pursuant.thereto, shall be. construed as an admission of liability, such · ' · being denied. · ·· . · nor 2 2 of 6 INDEX NO. 151037/2018 [*FILED: 3] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 ·Jt is further understood and agreed that the undersigned relies wholly upon the. undersigned's judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefore is made without reliance upon any statement or representation·of the party or parties hereby releas.ed or their representatives. THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNJ;>ERSTANDS IT." (Defendant's Exhibit B). Plaintiff her affidavit that at the time she met with the insurance representative she pelieved ·she was being offered compensation for her initial out of pocket.expenses, and.did not know that was this intended by the representative as a full settlement of her bodily injury claim. In addition, plaintiff alleges that at the time she signed the release, she did not .know the full extent of her injuries and executed the release without the adviCe of.counseL In support of these contentim1s, plaintiff submits two MRI reports, one of plaintiffs left hip and the.other of her left knee that were not performed until April 25,2017, seven. days after she signed the release. The MRI of the left hip revealed an -anterior superior labral· tear. The MRI of the left knee revealed a patella alta with lateral sublaxation, degenerative change and joint effusion . (Affirmation in Opposition of Plaintiffs Counsel dated July 28, 2018, Exhibits B & C). After the MRI of her hip on May 25, 2017, plaintiff underwent a.left hip arthroscopic procedure with labral debridement and synovectomy (Plaintiff's Affidavit dated July 26, 2018, attached as Exhibit A to Counsel's Affirmation in Opposition). '.''A release is a contract, and its construction is governed by contract law_' " (Cardinal Holdings, Ltd. v. Jndotronix Inti Corp., 73 AD3d 960, 962 [2d Dept2010], quoting Lee v. Baro Realty, LLC, . ~9 AD3d 715, 716 [2d Dept 2007]; see Rivera v. . WyckojfHgts. Med. Ctr., 113 AD3d 667, 670 [2d Dept 2014]). In general, 'a valid release constitutes a complete bar to an action o.n a claim which is the subject of the 3 3 of 6 INDEX NO. 151037/2018 [*FILED: 4] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 r.eiease" (Centro Empresarial Cempresa S.A. v, America Movil, S.A.B. de CY, i 7 NY3d 269, 276"[2011]. '~ Telease may .be-invalidated,.however, for-any of' the traditional bases for setting aside. written agreements, namely, duress, illegality,Jraud~ or mutual mistake'" (id at276, quoting Mangini v. Mcclurg, ·24 NY2d 556,,563 [1969]. Moreover, th~re is a requirement'that· a release covering both known and ll_nknown injuries be" 'fairly and knowingly ma<l.e' "(Id., at 566, quoting Farrington v. Harlem Sav. Bank, 280 NY I, 4, [1939]; Powell y.. Adler; 128 AD:ld 1039. [2d Dept 2015]; Pacheco v 32-42 55th St. Realiy, LLC, 139 Ab3d 833,833-34 [2d Dept 2016]. Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting a copy .of the release sigl)ed by the plaintiff, which by its ,language released the defendants from:any and all claims or: actions arising from the accident.. In their reply, defendants also attached the affidavit of the claims adjuster, James Friscia, who visited. the plaintiff at her home on Ap;]l 18, 20i7 to· investigate the Claim. According to his affidavit, the claims adjuster states that before he spoke with the plaintiff, he asked if she had an attorney to which she· replied that she did not. The adjuster also stated that duririg 'settlement negotiations" that $!,5QO.OO was being offered in full settlement of her claim. The adjuster also states that plaintiff was reluctant to accept the settlement fund~ as the defendant, Ms. Troia, was a fi-iend and she did not want to cause her any trouble. The adjuster alleges that he explained to Ms. Etheiidge that in accepting the settlement funds she would not cause her friend any hardship. The plaintiff then 'voluntarily'' signed the release. Mr. FiisCia alleges that at no time did Ms.Etheridge claim that she did not understand the terms of ihe release, nor. did she claim 4 4 of 6 INDEX NO. 151037/2018 [*FILED: 5] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 that she did not know or understand the severity ofber injuries, as she was aware that she had an upcoming physical therapy appointment for her left ·knee and hip as well as an MRI of her left hip and knee (Defendant's reply, Exhibit A). In addition, the plaintiff accepted and cashed a checkin.the amountof$I,500.0d from Progressive(Defendant's Exhibi\.C; see Matter l?fSinger v. Windfield; 125 AD3d 666 [2d:Dept 2015]; Schill!~rv. Guthrie, 102AD3d 854 [2dDept2013]. In opposition, however, the plaintiffraised a. triable issue of fact While not dispositive; plaintiffs affidavit.states that the insurance adjuster visited her only nine days the accident, when she could not have.possibly known the extent of her injuries, because the MRI'ofher knee.a!Jd hip were schedl!led fqr the following week. the.allegations that.the adjuster told her the highest settlement she could obtain was .$1,500.00 and that all of the other passengers in the car had·seitled'their claims, iftrue, rafaetriable issues offact as to whether, inter alia, there was fraud in.the inducement of the.release, and as to whether the release. was fairly and knowingly made (see; Sacchetti- Virga v. Bonilla, 158 ADd3.d 7?3 [2d Dept 2018]; Warmhold v. Zagarino, 106 AD3d 994 [2d Dept 2013]; Fuentes v. Aluskewicz, 25. AD3d 727 [2d 2006]. This is especially trµewhere .the' 'releasor has had little time for investigation or deliberation, or because of the existence of overreaching or''unfair circumstances (see; Mangini v. McC!urg, supra, at 567). Here, the allegations offraud were sufficientto support a.possibie finding that' .therelease,signed by the.plaintiff was obtained '\Jnder circurn.stances .whfoh indicate unfairness" (Farb.erv Breslin, 47 AD3d.873, ~77 [2d Dept 2008] quoting, Gibli v.. :Kadosh, 279 A.D.2d 35, 41 [lstDepl2000], and/or unconscionability (Rivera v. Vickers, 72 AD2d 807 [2d Dept. 1979]; see also, Castenada v. Ruderman, 48 Misc. 2d 321]. s 5 of 6 INDEX NO. 151037/2018 [*FILED: 6] RICHMOND COUNTY CLERK 11/28/2018 09:07 AM NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/27/2018 The Court notes at this point that there is no evidence in the record before it supporting the adjuster's representations that the other passengers had in fact settled their claims with defendant. Finally, it must be remembered that where fraud or duress or the like in procuring a release are alleged, a motion to dismiss such release should be denied (Bloss v. Va'ad Harabonim of Riverdale, 203 AD2d 36 [1" Dept. 1994], citing, inter alia, Newin Corp. v. Hartford Acc. & lndem. Co., 37 NY2d 211, 217 [1975]; Anger v. Ford Motor Co. Dealer Dev., 80 AD2d 736 [4'h Dept.. 1981]. Defendant's ninth affirmative defense, that of release, shall be an issue to be determined at trial. For the foregoing reasons, defendants' motion to dismiss (Motion Seq. 001) is denied. The motion for a joint trial (Motion Seq. 002) is granted pursuant to the terms of the order dated February 22, 2018 under Index# 152268/2017. It is so ordered. ENTER Dated: November 27, 2018 HON. WP..YNE. M. oZZI J.s.c. 6 of 6