Lisi v. Lisi

The following papers were considered on the motion of defendant VALENTIN LISI (Mot. Seq. 1) made pursuant to CPLR 3212, for an order granting summary judgment based on the affirmative defenses set forth in defendant’s verified answer; and pursuant to CPLR 3211 (a) (5) and (7), for an order to dismiss plaintiff JOAN LISI’s complaint on the grounds that the cause of action may not be maintained because of release, and that the pleading fails to state a cause of action: PAPERS Notice of Motion,¹ Affirmation in Support, Exhibits A-D, Affidavit of Defendant Affirmation in Opposition Affirmation in Reply Surreply Affirmation in Opposition² Letter from defendant’s counsel dated October 2, 2019 DECISION/ORDER   Upon review of the foregoing papers, the court determines as follows: The principal issue on this motion, stated narrowly, is whether plaintiff’s instant action against defendant is barred by her execution of a stipulation of settlement in connection with dissolving the parties’ marriage, which includes a general release of all claims between the parties. The parties were married in November 2017 and are former spouses. Their marriage was terminated by judgment of divorce entered in June 2019 pursuant to a decree signed by the Hon. David F. Everett, J.S.C.³ As part of the judgment, the parties entered into a stipulation of settlement dated May 31, 2019, which was incorporated by reference but not merged into the judgment. Notably, the stipulation of settlement contains a release with respect to “all claims” between the parties. Plaintiff, however, commenced the instant action on May 7, 2019, asserting causes of action under the theories of negligence per se, gross negligence, tortious transmission of an infectious venereal disease passed through sexual intercourse — namely, herpes simplex virus (hereinafter HSV), and fraud. Defendant answered asserting general denials and six affirmative defenses which include, among others, that plaintiff’s causes of action are precluded based on the general release consented to in the parties’ settlement agreement. Defendant now moves to dismiss plaintiff’s complaint on the ground that the suit cannot be maintained due to mutual release of general claims, for failure to state a cause of action, and for summary judgment inasmuch as he contends that there are no genuine issues of material fact based on his affirmative defenses. Plaintiff opposes the motion. Plaintiff’s main contention is that the release is inapplicable because it pertains to issues associated with the parties’ divorce — i.e., equitable distribution. Plaintiff posits that defendant had no intent to waive her legal rights based on defendant’s alleged criminal conduct and that it is against public policy to allow a waiver in this instance. Specifically, she alleges that defendant engaged in criminal conduct by knowingly transmitting an “infectious venereal disease” to her through sexual intercourse in violation of Public Health Law §2307 and, so, the release cannot afford defendant protection from civil liability. She claims that the release is unconscionable and ought to be disregarded by the court. Conversely, defendant stresses that the general release is valid and binding because plaintiff executed same with the assistance of experienced counsel despite her prior knowledge of potential claims that she had against him. Defendant contends that the release contains broad, unambiguous language of “all claims,” which essentially discharged each of plaintiff’s causes of action by virtue her execution of the stipulation. As explained above, defendant primarily seeks dismissal of the complaint on the basis that plaintiff has released defendant for the claims she is currently suing him for. CPLR Rule 3211 (a) (5), in pertinent part, permits a party to move for judgment on one or more causes of action asserted against the movant on the ground that the “cause of action may not be maintained because of…[a] release.” “In resolving a motion for dismissal pursuant to CPLR 3211 (a) (5), the plaintiff’s allegations are to be treated as true, [and] all inferences that reasonably flow therefrom are to be resolved in his or her favor” (Sacchetti-Virga v. Bonilla, 158 AD3d 783, 784 [2d Dept 2018], quoting Ford v. Phillips, 121 AD3d 1232, 1234 [3d Dept 2014]). “A defendant may move to dismiss a complaint in whole or in part based on release. Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release” (Webster v. Forest Green Apt. Corp., 174 AD3d 668, 669 [2d Dept 2019] [internal quotation marks and citations omitted]). “Stipulations of settlement are favored by the courts and are not lightly cast aside, particularly when the parties are represented by attorneys” (Ebel v. Ebel, 121 AD3d 934, 935 [2d Dept 2014]; see Hallock v. State of New York, 64 NY2d 224, 230 [1984]; Castellano v. Castellano, 66 AD3d 942, 942 [2d Dept 2009]; Ramnarain v. Ramnarain, 7 AD3d 600, 601 [2d Dept 2004]). “Absent a ‘strong countervailing public policy,’ parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce” (AMCC Corp. v. New York City Sch. Constr. Auth., 154 AD3d 673, 676 [2d Dept 2017] [internal brackets omitted], quoting Martin v. City of Cohoes, 37 NY2d 162, 165 [1975]; see Bruzzese v. Bruzzese, 152 AD3d 563, 565 [2d Dept 2017]). “A release is a contract, and its construction is governed by contract law. Where a release is unambiguous, the intent of the parties must be ascertained from the plain language of the agreement. However, if 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. 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” (Kaminsky v. Gamache, 298 AD2d 361, 361-362 [2d Dept 2002] [internal quotation marks, brackets, and citations omitted]; see Kaprall v. WE: Women’s Entertainment, LLC, 74 AD3d 1151, 1152 [2d Dept 2010]; see also Augello v. Koenig-Rivkin, 56 AD3d 503, 504 [2d Dept 2008]; Caruso v. Northeast Emergency Med. Assoc., P.C., 54 AD3d 524, 530 [3d Dept 2008]). The execution of a clear and unambiguous release is a significant legal act that generally binds the parties (see Booth v. 3669 Delaware, 92 NY2d 934, 935 [1998]), and “the intent of the parties must be ascertained from the plain language of the agreement” (Sacchetti-Virga v. Bonilla, 158 AD3d at 784; see Webster v. Forest Green Apt. Corp., 174 AD3d at 669; Schiller v. Guthrie, 102 AD3d 852, 854 [2d Dept 2013]). However, a release may not be read to cover matters which the parties clearly did not intend to cover (see Wechsler v. Diamond Sugar Co., Inc., 29 AD3d 681, 682 [2006]; Kaminsky v. Gamache, 298 AD2d at 361-362; Stone v. Aronwald & Pykett, 275 AD2d 706, 707 [2000]; see also Matter of Kemp v. Perales, 199 AD2d 320, 321-322 [2d Dept 1993]). Although a release may encompass unknown claims, it must be clear that the parties so intended by the use of broad, all-encompassing language (see Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V.,17 NY3d 269, 276-277 [2011]). “The existence of a disputed issue of fact depends upon what, as a matter of law, constitutes a mistake of fact as to an unknown injury and when, also as a matter of law, subsequent discovery of unknown injuries justifies the setting aside of a general release” (Mangini v. McClurg, 24 NY2d 556, 560 [1969]). If a court cannot definitively determine whether the scope of a release was intended to cover the allegations in a complaint, then a motion pursuant to CPLR 3211 (a) (5) should be denied (see Storman v. Storman, 90 AD3d 895, 898 [2d Dept 2011]; Kaprall v. WE: Women’s Entertainment, LLC, 74 AD3d at 1152). In the present case, article 9 of the stipulation of settlement contains a clause titled “mutual release of general claims,” which provides in relevant part that “[e]xcept as expressly provided in this [s]tipulation, each party hereby waives, releases, renounces and forever discharges all claims, causes of action, rights or demands, known or unknown, past, present or future, which he or she now or hereafter has, might have, or could claim to have against the other by reason of any matter, thing or cause whatsoever, which may have arisen or accrued prior to the date of this [s]tipulation.” (defendant’s exhibit A). The clause continues that “[n]othing in this [a]rticle 9 shall be deemed to prevent either party from enforcing the terms of the Prenuptial Agreement or from asserting any rights or claims expressly reserved to either party in this [s]tipulation.”⁴ In her complaint, plaintiff asserts that upon detecting certain symptoms, she visited a doctor in April 2019 to test whether she had contracted a sexually transmitted disease (STD), which ultimately revealed that she was infected with HSV, and that it was the first time she discovered that she had an infection. She alleges that she had never been infected with a STD prior to her engaging in sexual intercourse with defendant, that defendant was aware that he was infected with HSV when the two had intercourse, and that she would not have engaged in sexual intercourse with him had she known that defendant was infected. Plaintiff further claims she did not engage in sexual activity with any other person other than defendant “throughout the entirety of [their] relationship…and up to the date [she] learned that they were infected.” As part of her second cause of action predicated upon negligence per se, plaintiff asserts that defendant violated Public Health Law §2307, which states that “[a]ny person who, knowing himself or herself to be infected with an infectious venereal disease, has sexual intercourse with another shall be guilty of a misdemeanor.” Because this law was “enacted for public health and safety,” “[a] duty to speak in the circumstances, given the relationship of trust between the parties, can also be predicated upon [the statute] (Maharam v. Maharam, 123 AD2d 165, 170 [1st Dept 1986]; see generally Doe v. Roe, 157 Misc 2d 690, 692 [Haverstraw Just Ct 1993]; Doe v. Doe, 136 Misc 2d 1015, 1017 [Sup Ct, Kings County 1987]). Here, it is undisputed that the stipulation of settlement containing the subject release was executed within the context of an uncontested matrimonial action for divorce and intended to resolve a wide range of the parties’ marital issues.⁵ Because 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” (Dillon v. Dean, 236 AD2d 360, 360 [2d Dept 1997], lv dismissed 89 NY2d 1085 [1997]), the release at issue may not have intended to include plaintiff’s present causes of action stemming from her recent discovery that she was infected with HSV (see Kaminsky v. Gamache, 298 AD2d at 361-362; compare Gale v. Citicorp, 278 AD2d 197, 197 [2d Dept 2000]). Further, plaintiff’s private causes of action in connection with the transmittal of a STD were not the subject matter of the parties’ divorce (cf. Wechsler v. Diamond Sugar Co., Inc., 29 AD3d at 682; Stone v. Aronwald & Pykett, 275 AD2d at 707). The record is devoid of whether the factual or legal issues pertaining to this underlying action were raised to Justice Everett prior to signing of the divorce decree. Of note, defendant does not contend otherwise, and his affidavit submitted in support of his motion is without probative value as it does not dispute any of plaintiff’s assertions. As such, the court finds that there is a material issue of fact as to whether the release in question was intended to include plaintiff’s claims for alleged injuries that are the subject matter of this action (see Mangini v. McClurg, 24 NY2d at 560; Grab v. Jewish Assn. for Servs. for Aging, 254 AD2d 455, 456 [2d Dept 1998]; National Sur. Corp. v. Parisi & Son Constr, 239 AD2d 396, 396 [2d Dept 1997]). Thus, defendant’s motion to dismiss under CPLR 3211 (a) (5) is denied (see Storman v. Storman, 90 AD3d at 898; Kaprall v. WE: Women’s Entertainment, LLC, 74 AD3d at 1152). The court also finds that plaintiff has pled sufficient allegations in the complaint to survive a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7) (see Davis v. Boeheim, 24 NY3d 262, 268 [2014]; Simkin v. Blank, 19 NY3d 46, 52 [2012]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; see also Shah v. Mitra, 171 AD3d 971, 973 [2d Dept 2019]; Hartman v. Morganstern, 28 AD3d 423, 424 [2d Dept 2006]). Lastly, because the parties have raised a triable issue of fact as to whether the subject release should have barred plaintiff’s underlying causes of action and preclude recovery for her alleged injuries, summary judgment at this juncture is not warranted under these circumstances (see CPLR 3212 [b]; Mangini v. McClurg, 24 NY2d at 560; Rosen v. Town of Oyster Bay, 216 AD2d 283, 283 [2d Dept 1995]; cf. Mosca v. Gattuso, 262 AD2d 618, 618 [2d Dept 1999]). The court has considered the additional contentions of the parties not specifically addressed herein. To the extent any relief requested by either party was not addressed by the court, it is denied. Accordingly, it is hereby: ORDERED that the motion of defendant VALENTIN LISI (Mot. Seq. 1) made pursuant to CPLR 3212, for an order granting summary judgment based on the affirmative defenses set forth in defendant’s verified answer; and pursuant to CPLR 3211 (a) (5) and (7), for an order to dismiss plaintiff JOAN LISI’s complaint on the grounds that the cause of action may not be maintained because of release, and that the pleading fails to state a cause of action is denied; and it is further ORDERED that the parties shall appear at the Preliminary Conference Part of the Court, Courtroom 800, on February 24, 2020 at 9:15 A.M. The foregoing constitutes the decision and order of the court. Dated: January 16, 2020    White Plains, New York