Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this MotionPapers NumberedNotice of Motion and Affidavits Annexed 1Order to Show Cause and Affidavits AnnexedAnswering Affidavits 2Replying Affidavits 3ExhibitsSupplemental AffidavitDECISION/ORDER The defendants bring the instant motion for dismissal of the complaint in this subrogation action pursuant to CPLR §3211(a) (5), on the ground of release.The decision is granted for the reasons set forth and discussed below. Plaintiff brought the within action, on behalf of its subrogor/insured Domingo Euclid Moreta Perez, to recover additional personal injury benefits (PIP) paid to its subrogor and arising out of a motor vehicle accident between the insured Perez and the defendants on August 23, 2015. The amount paid to Perez was, as per the complaint, comprised of hospital and/or medical expenses incurred and loss of wages. Prior to the commencement of this action on August 22, 2018, plaintiff notified its insured, the defendants and their carrier, by letters dated February 7, 2018, of its intention to pursue subrogation and seek reimbursement for benefits paid to its insured, Perez. Prior to that, the defendants settled Mr. Perez’s claims, arising out of the accident, for $70,000; Mr. Perez signing, on January 4, 2017, a document entitled “FULL RELEASE OF ALL CLAIMS AND DEMANDS”.The document, as per its language in relevant part, releases, in consideration of the sum of $70,000, Edward Grosinger and Judith Grosinger:“from any and all claims, actions, causes of actions, demands, rights, damages, costs, property damage, loss of wages, expenses, hospital, medical and nursing expenses, ***on account of in any way growing out of, any and all known and unknown personal injuries and damages resulting from an automobile accident which occurred on or about Aug/23/15, at or near 12th Avenue. It is understood and agreed that this settlement is in full compromise***”.Our Second Department has recognized that “‘a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake or duress’ [citations omitted]“, Virga v. Bonilla, 158 AD 35d 783, 784 [2018]). However, “‘[I]f from the recitals therein or otherwise, it appears that the release is to be limited to only particular claims, demands or obligations, the instrument will be operative as to those matters alone’ [citations omitted]. Indeed, ‘the meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given. A release may not be read to cover matters which the parties did not intend to cover’ [citations omitted", Kaminsky v. Gamache, 298 AD 2nd 361, 362 [2d Dept. 2002]). (See also Zichron Acheinu Levy, Inc. v. Howitz, 31 AD 3rd 756 [2nd Dept. 2006]; Ofman v. Campos, 12 AD 3rd 581 [2nd Dept. 2004]).Plaintiff, in its complaint, seeks to recover additional PIP benefits, which, as alleged in the complaint, include medical and/or hospital expenses and loss of wages arising out of the August 23, 2015 accident. Though, at first glance, it may appear that the subject release only concerns a personal injury action, a complete, word by word reading, clearly shows that the release also covers loss of wages and hospital and medical expenses arising out of the accident. As such, a “subrogee of its insured, standing in its insured’s shoes and having no greater rights than its insured has, may not assert a subrogation claim against defendant” (Daimler Chrysler Insurance Company v. New York Central Mutual Fire Insurance Co., 125 AD 3rd 518 [1st Dept. 2015]).Plaintiff’s attorney, in his affirmation in opposition, argues that, nevertheless, dismissal is not warranted as the release, on the basis of General Obligations Law (GOL) 5-335, does not defeat plaintiff’s right of subrogation in this matter.GOL §5-335(a) provides, as relevant herein, that:“No person entering into such settlement [of a claim for, inter alia, personal injuries] shall be subject to a subrogation claim *** by an insurer and an insurer shall have no lien or right of subrogation ***against such settling person ***with respect to those losses or expenses that have been or are obliged to be paid *** by said insurer.”§5-335(b) provides, in part, that “[T]his section shall not apply to a subrogation claim for recovery of additional first-party benefits provided pursuant to article fifty-one of the insurance law.”Plaintiff further argues that the cases cited by defendants were rendered before GOL §5-335 went into effect. An appellate decision in the Second Department, rendered on June 21, 2016, wherein the court (Appellate Term, 2nd, 11th and 13th Judicial Districts) found that an insurer failed to establish its defense of release, stating therein that once “‘an insurer has paid a claim and the tortfeasor knows or should have known that a right of subrogation exists, the wrongdoer and the insured cannot agree to terminate the insurer’s claim without its consent and such an agreement cannot be asserted as a defense to the insurer’s cause of action ‘[citations omitted] “(State Farm Mutual Automobile Insurance Company v. Knish Hacking Corp., 52 Misc 3rd 132 (A)). Such decision, rather than supporting plaintiff’s arguments, defeats them, as the circumstances mentioned in the above-cited decision, are totally opposite those in the case at bar: The release in question was signed more than a year before plaintiff gave notice of its intention to seek subrogation; nor was there any evidence that the insured had been paid by plaintiff as of the date of the release.Upon all of the above, the court finds that the release herein bars plaintiff’s right of subrogation.Accordingly, the motion by the defendants is granted and the complaint is dismissed.The foregoing constitutes the decision and order of this court.Dated: 5/1/19
