Judges： Devine, Garry, Lynch, Peters, Stein
Filed Date： 10/16/2014
Status： Precedential
Modified Date： 11/1/2024
Appeal from an order of the Supreme Court (Clark, J), entered July 23, 2013 in Washington County, which granted defendants’ motion to dismiss the complaint.
In June 2012, plaintiff was operating a vehicle in the Town of Argyle, Washington County, when he was involved in an accident with a vehicle owned by defendant Paula E. Phillips, operated by defendant Ryen D. Phillips, and insured by Travel
Defendants met their initial burden of establishing that they had been released from plaintiff’s claims by submitting the signed release. Contrary to plaintiffs contention, no affirmation from a party with personal knowledge was required to authenticate the release; plaintiff admits that he signed the document, and its facially valid terms establish that he released all personal injury claims against defendants arising out of the June 2012 accident. Accordingly, the burden shifted to plaintiff to establish the existence of issues of fact as to whether the release bars this action (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]; Nelson v Lattner Enters. of N.Y., 108 AD3d 970, 972 [2013]). Notably, plaintiff has not moved to set the release aside and does not yet request such relief as a matter of law; instead, he merely seeks to avoid preanswer dismissal of the complaint and to defer the determination whether the release bars the action until after the factual record pertaining to his claims of fraud and mutual mistake has been developed through discovery.
Plaintiff submitted an affidavit asserting that a claims representative for Travelers contacted him shortly after the accident to arrange a meeting at plaintiffs home. During this meeting, the representative allegedly induced plaintiff to sign the release by assuring him that he had suffered only “soft tissue injuries” that would heal over time and that Travelers would “take care of [plaintiff]” if his injuries turned out to be “something serious.” Plaintiff asserts that the representative stated that Travelers was an “up-and-up company” that “doesn’t play games,” that New York law required the company to take care of “any permanent injury,” and that Travelers had recently paid $20,000 to another injured party who had undergone surgery after signing a release. Finally, plaintiff claims that the representative told him that the $750 payment represented interim reimbursement for time and fuel expenses related to
In reply, defendants submitted an affidavit from the claims representative, denying that he represented to plaintiff that the $750 payment represented anything other than a full settlement of his claims, or that the settlement could be altered after the release was signed. The representative described two telephone conversations and one face-to-face meeting with plaintiff in which the only injuries that plaintiff reported were “soreness in his arms” and “muscle pain in his forearms,” for which he was being treated by his primary care physician. The representative further averred that when plaintiff met with him to sign the release, he stated “that his arms were feeling better” and that he had returned to work. The affidavit includes no claim that plaintiff mentioned that he had suffered injury to his neck or back, nor does it state that the parties intended the release to cover other injuries.
In resolving a motion for dismissal pursuant to CPLR 3211 (a) (5), the plaintiffs allegations are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in his or her favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light (see Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Enock v National Westminster Bankcorp, 226 AD2d 235, 236 [1996]).
As to the fraudulent inducement claim, a motion to dismiss a complaint based solely upon a release should be denied when the plaintiff alleges fraud or duress in the release’s procurement (see Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]; Steen v Bump, 233 AD2d 583, 584 [1996], lv denied 89 NY2d 808 [1997]; see also Warmhold v Zagarino, 106 AD3d 994, 995 [2013]; Bloss v Va’ad Harabonim of Riverdale, 203 AD2d 36, 37 [1994]). Although defendants contend that plaintiff — who acknowledged that he read the release — will ultimately be unable to prove his claim that he justifiably relied upon the representative’s alleged statements, “[t]he question of what constitutes reasonable reliance is always nettlesome because it is so fact-intensive” (DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 155 [2010] [internal quotation marks and citation omitted]). Plaintiff’s claims — which, as previously noted, are treated as true for the purpose of this motion — are sufficiently detailed and specific to allege the elements of fraud (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d at 276). As they support a possible finding that the release was obtained “under circumstances which indicate unfairness,” the complaint should not have been dismissed at this juncture (Gibli v Kadosh, 279 AD2d 35, 41 [2000] [internal quotation marks and citation omitted]; see Steen v Bump, 233
Ordered that the order is reversed, on the law, with costs, motion denied, and matter remitted to the Supreme Court to permit defendants to serve an answer within 20 days of the date of this Court’s decision.
. Travelers made a separate property damage payment to the nonparty owner of the vehicle that plaintiff was operating, which was assessed as a total loss.
. Defendants assert on appeal that plaintiff’s affidavit constitutes inadmissible hearsay and that, in the absence of independent medical proof, he has not proven that he sustained herniated disks or any other injury to his back or neck. These arguments, however, are based upon burdens of proof and evidentiary standards applicable to motions for summary judgment that do not pertain to this CPLR 3211 motion.