The following papers numbered 1 to 6 read on the below motion noticed on December 18, 2017 and duly submitted on the Part IA15 Motion calendar of January 22, 2018:Papers Submitted NumberedDef.’s Notice of Motion, Affirmation, Exhibits 1, 2Pl.’s Cross-Motion, Exhibits 3, 4Def.’s Reply Aff., Opp. To Cross-Motion, Exhibits 5, 6Pl.’s Reply Aff., Exhibits 7, 8DECISION/ORDER Upon the foregoing papers, defendant Menachem Braun (“Defendant”) moves for an order pursuant to CPLR 3211(a)(5) and General Obligations Law §15-108, dismissing the complaint of the plaintiff Manuel D. Paulino (“Plaintiff”), on the grounds that Plaintiff accepted a settlement from Defendant and released Defendant from the claim which arises from this cause of action. Plaintiff opposes the motion and cross-moves for an order pursuant to CPLR 3211, dismissing the 12th Affirmative Defense in Defendant’s Answer because it is based upon a purported release which should either be held legally insufficient and/or should be rescinded. Defendant opposes the cross-motion.”Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” (Centro Empresarial Cempresa S.A. v. America Movil, S.A.B.de C.V.. 17 N.Y.3d 269, 276 [2011]). “A release will not be treated lightly because it is ‘a jural act of high significance without which the settlement of disputes would be rendered all but impossible’” (Allen v. Riese Organization, Inc., 106 A.D.3d 514, 516 [1st Dept. 2013], quoting Mangini v. McClurg, 24 N.Y.2d 556, 563 [1969]). The enforceability of releases are generally analyzed under the same principles that govern contract law (see Johnson v. Lebanese American University, 84 A.D.3d 427, 428 [1st Dept. 2011][quotation omitted]). Accordingly, where a release is clear, unambiguous, and knowingly and voluntarily entered into, it is binding on all parties unless it was procured by fraud, duress, overreaching, illegality, or mutual mistake (Allen, supra at 516; see also Skulth v. United Merchants & Mfrs., 163 A.D.2d 104, 106 [1st Dept. 1990]). A release extends to claims both known and unknown if the agreement was “fairly and knowingly made” (Johnson v. Lebanese American University, supra. at 430, quoting Mangini v. McClurg, 24 N.Y.2d at 566). Issues of fact may exist as to whether a release was “fairly and knowingly made” where the “releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances” (see Mangini v. McClurg, 24 N.Y.2d at 567).On a motion to dismiss under CPLR 3211(a)(5), “the plaintiff’s 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 Sacchetti-Virga v. Bonilla, 158 A.D.3d 783, 784 [2nd Dept. 2018] [internal quotation omitted]). A dismissal motion made pursuant to CPLR 3211(a)(5) “on the basis of release ‘should be denied where fraud or duress in the procurement of the release is alleged’” (id., citing Farber v. Breslin, 47 A.D.3d 873, 877 [2nd Dept. 2008]; see also Newin Corp. v. Hartford Acc. & Indemn. Co., 37 N.Y.2d 211, 217 [1975] “plaintiffs allege that the release’s execution was improperly obtained. Such a claim is well recognized…and, in and of itself would be sufficient to support a denial of this branch of the motion”]; see also Bloss v. Va’ad Harabonim of Riverdale, 203 A.D.2d 36, 39-40 [1st Dept. 1994]).In this matter, Defendant carried his initial burden by submitting an authenticated copy of the release signed by Plaintiff, a copy of the $6,000 check forwarded to Plaintiff, and an affidavit from Defendant’s insurance adjuster. These submissions establish that by the terms of the release bar the instant action (see Davis v. Rochdale Vil., Inc., 109 A.D.3d 867 [2nd Dept. 2013]). Although the release refers to an “automobile accident,” it clearly refers to the incident described in the complaint, as the release discharges Menachem Braum for damages arising out of an accident that occurred on “May 31, 2016…on the water of Hudson River, New York.” Plaintiff’s affidavit in opposition does not claim that there was a mistake about the agreement or that it intended to refer to an automobile and not boating accident. A scrivener’s error-a mistake solely in the reduction of an agreement to writing-may be corrected and does not alone serve to invalidate an agreement (see, e.g., Ebasco Constructors, Inc. v. Aetna Ins. Co., 260 A.D.2d 287, 290 [1st Dept. 1999]). Plaintiff does not point to any legal authority to support his contention that the release is defective because it was not witnessed or notarized.In opposition to the motion, Plaintiff’s submissions-when construed in a light most favorable to Plaintiff, and allowing Plaintiff all favorable inferences that reasonably flow therefrom-sufficiently raise a question of fact as to whether release was signed under circumstances which indicate unfairness and whether it was not “fairly and knowingly made” (Sacchetti-Virga v. Bonilla, 158 A.D.3d 783, 784; quoting Pacheco v. 32-42 55th St. Realty LLC., 139 A.D.3d 833, 834 [2nd Dept. 2016]). Plaintiff’s medical records indicate that as a result of this accident he allegedly sustained inter alia a comminuted impacted fracture of the left hip requiring surgical intervention in the form of open reduction and internal fixation. After his June 3, 2016 surgery, Plaintiff alleges that he was confined to the hospital until June 16, 2016, and thereafter he was confined to his home until approximately July 21, 2016. Plaintiff alleges in his affidavit that Defendant’s insurance adjuster contacted him shortly after surgery, who offered $6,000 to settle his claim. Plaintiff, who was not represented by counsel and still recovering from surgery, wrote an e-mail to the adjuster expressing that he did not feel that the settlement amount was reasonable, that he understood it was an accident but his injuries “are for life,” and that he is going through “intensive therapy” and did not know what the outcome would be. Plaintiff states that the adjuster did not raise the offer but instead repeatedly pressured him, through calls and e-mails, into signing the release and accepting the $6,000 offered. Plaintiff’s contentions at this stage of the proceedings must be accepted as true, and they are sufficient to raise an issue of whether Plaintiff was aware of the extent of his injuries at the time he allegedly signed the agreement, and thus whether Plaintiff “had little time for investigation or deliberation” and signed the release under circumstances that indicate unfairness of overreaching (see, e.g., Bloss v. Va’ad Harabonim of Riverdale, 203 A.D.2d 36, 39-40; Mangini v. McClurg, 24 N.Y.2d 556, 567). In this case, the “timing and circumstances of the release’s execution, as well as the consideration it recites,” allows for a “viable basis to challenge defendant’s reliance upon the release as a complete defense” (see Gibli v. Kadosh, 279 A.D.2d 35, 41 [1st Dept. 2000]). It is noted that the matter Bronson v. Hansel, 79 A.D.3d 1603 [4th Dept. 2010], aff’d, 16 N.Y.3d 850 (2011), involved a defendant’s motion for summary judgment, not a motion to dismiss.The supplemental affidavit of Defendant’s insurance adjuster submitted in opposition to Plaintiff’s cross-motion, which denied Plaintiff’s allegations of overreaching, fails to negate the assertions in Plaintiff’s affidavit and does not entitle Defendant to dismissal under CPLR 3211(a)(5) (see, e.g., Tsimerman v. Janoff, 40 A.D.3d 242, 242 [1st Dept. 2007] [factual affidavits disputing accuracy of plaintiff's allegations cannot be considered when determining whether there is evidentiary support for a complaint]). The Plaintiff’s recorded phone call transcript, wherein Plaintiff allegedly told the adjuster that he did not believe that Defendant “did anything wrong” at the time of the accident, similarly fails to flatly reject Plaintiff’s contentions of unfairness or overreaching so as to entitle Defendant to dismissal of this action (see, generally Goshen v. Mutual Life Ins Co of New York, 98 N.Y.2d 314 [2002]). Nevertheless, Defendant’s submissions in opposition to the cross-motion raise issues of fact as to whether the release is enforceable, and therefore Plaintiff’s cross-motion to dismiss Defendant’s twelfth affirmative defense is denied (see, e.g., Pacheco v. 32-42 55th St. Realty, LLC., 139 A.D.3d at 834).Accordingly, it is herebyORDERED, that Defendant’s motion to dismiss is denied, and it is further,ORDERED, that Plaintiff’s cross-motion to dismiss Defendant’s 12th Affirmative Defense is denied.This constitutes the Decision and Order of this Court.Dated: June 8, 2018
