The following papers numbered EF 18-30 read on the motion by defendant to dismiss the complaint pursuant to CPLR §3211(a)(1), (5) and (7) and for attorney’s fees. Papers Numbered Notice of Motion — Affirmation — Exhibit EF 18-22 Answering Affirmation — Exhibits EF 23-27 Reply Memorandum of Law EF 28-30 DECISION/ORDER Upon the foregoing papers, it is ordered that the motion is determined as follows: This action arises from events that occurred in 2017, when plaintiff resigned from his position as an attending physician in the Department of Obstetrics and Gynecology at Flushing Hospital in Queens, New York. The court will first address the branch of defendant’s motion to dismiss pursuant to CPLR §3211(a)(1). “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (1) a defense is founded upon documentary evidence.” (CPLR §3211[a][1]). “Any objection or defense based upon a ground set forth in paragraphs one, three, four, five and six of subdivision (a) is waived unless raised either by such motion or in the responsive pleading.” (CPLR §3211[e]). Here, defendant failed to raise this defense in its answer and this motion was not made before the answer was due. Thus, this defense is waived. (See Pesce Bros., Inc. v. Cover Me Ins. Agency of NJ, Inc., 144 AD3d 1120, 1123 [2d Dept 2016]). Defendant also moved for dismissal pursuant to CPLR §3211(a)(5), an affirmative defense defendant previously raised in its answer. “A party may move for judgment dismissing one or more causes of action asserted against him on the ground that…the cause of action may not be maintained because of…[a] release.” (CPLR §3211[a][5]) “A release is a contract, and its construction is governed by contract law.” (Carew v. Baker, 175 AD3d 1379, 1380 [2d Dept 2019], quoting Kaminsky v. Gamache, 298 AD2d 361, 361 [2d Dept 2002]). Where “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties.” (Booth v. 3669 Delaware, Inc., 92 NY2d 934, 935 [1998]; Rivera v. Wyckoff Hgts. Med. Ctr., 113 AD3d 667, 670 [2d Dept 2014].) “A release will not be treated lightly, and will be set aside by a court only for duress, illegality, fraud, or mutual mistake.” (Outdoors Clothing Corp. v. Schneider, 153 AD3d 717, 718 [2d Dept 2017], quoting Shklovskiy v. Khan, 273 AD2d 371, 372 [2d Dept 2000]). Defendant seeks to dismiss the first three causes of action as barred by a general release. In support of its motion, defendant appended a letter (hereinafter the “Release) dated September 8, 2017, on defendant’s letterhead, addressed to plaintiff, bearing the subject “Confidential Separation Agreement and Release.” The Release, which was signed by plaintiff and notarized on September 14, 2017, provides in clear and unambiguous terms, that defendant is released from all claims plaintiff may have that arise out of plaintiff’s employment with defendant. Thus, the plain language of the Release precludes plaintiff’s first three causes of action against defendant. (See Matter of Travelers Home & Mar. Ins. Co. v. Fiumara, 164 AD3d 592, 593 [2d Dept 2018]). In opposition, plaintiff failed to demonstrate that there was fraud, duress, or some other facts sufficient to void the release. (See Liotti v. Galasso, Langione and Botter, 128 AD3d 912 [2d Dept 2015]). Plaintiff alleges that the three-page agreement letter he signed, which he appended to his papers, did not contain a general release. The letter, containing pages one, two and seven, and missing pages three, four, five and six, is otherwise identical to the Release submitted by defendant. What plaintiff seeks in this instance is an implausible finding that an educated doctor, such as plaintiff, would sign a contract that, facially, was missing four out of seven pages. “A plaintiff is expected to exercise ordinary diligence and may not claim to have reasonably relied on a defendant’s representations where he has means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation.” (Benjamin v. Yeroushalmi, __ AD3d __, 2019 NY Slip Op 08647 [2d Dept 2019], quoting Sitar v. Sitar, 61 AD3d 739, 742 [2d Dept 2009] [internal quotation marks omitted]). With respect to the branch of defendant’s motion to dismiss pursuant to CPLR §3211(a)(7), plaintiff sufficiently alleged a cause of action to recover damages for breach of contract against defendant. “When a party moves to dismiss a complaint pursuant to CPLR §3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action.” (Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682, 682 [2d Dept 2012]; quoting Sokol v. Leader, 74 AD3d 1180, 1180-1181 [2010]). “[T]he complaint must be construed liberally, the factual allegations in the complaint must be deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.” (Magee-Boyle v. Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1158-59 [2d Dept 2019]; see Leon v. Martinez, 84 NY2d 83, 87 [1994].) “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” (Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30, 38 [2018], quoting EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Zurich Am. Ins. Co. v. City of N.Y., 176 AD3d 1145 [2d Dept 2019].) “The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of his or her contractual obligations, and damages resulting from the breach.” (Victory State Bank v. EMBA Hylan, LLC, 169 AD3d 963, 965 [2d Dept 2019] [internal quotation marks omitted]). Here, plaintiff alleges, inter alia, that the termination of his health insurance on September 30, 2017 breached the agreement he had with defendant. Assuming the facts alleged to be true and according plaintiff the benefit of every favorable inference (see Goshen v. Mutual. Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v. Martinez, 84 NY2d 83, 88 [1994]), the complaint sufficiently alleges the elements of a breach of contract cause of action against defendant necessary to survive a motion to dismiss pursuant to CPLR §3211(a)(7). (See Magee-Boyle v. Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1159 [2d Dept 2019]). Contrary to defendant’s contention, plaintiff is not required to attach a copy of the contract. (First Class Concrete Corp. v. Rosenblum, 167 AD3d 989, 990 [2d Dept 2018]). As to the branch of defendant’s motion for attorney’s fees, while defendant is entitled to attorney’s fees as set forth in the Release, an award of attorney’s fees is premature at this juncture. Accordingly, the branch of defendant’s motion to dismiss the first three causes of action is granted. The branch of defendant’s motion to dismiss the breach of contract cause of action is denied. The branch of defendant’s motion for attorney’s fees is denied. This is the decision and order of the Court. Dated: January 8, 2020
