By Austin, J.P.; Duffy, Nelson, Christopher, JJ. CORNELIUS SMITH, app, v. CHANAE PIERCE, ET AL., res — (Index No. 3990/16) Schonberg Law Offices of the Hudson Valley, P.C., Central Valley, NY (Ryan Fagen and Susan R. Nudelman of counsel), for appellant. Vigorito, Barker, Patterson, Nichols and Porter, LLP, Valhalla, NY (Christopher J. Whitton of counsel), for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from two orders of the Supreme Court, Orange County (Elaine Slobod, J.), dated May 7, 2018, and September 13, 2018, respectively. The order dated May 7, 2018, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not serve a timely notice of claim pursuant to General Municipal Law §50-e. The order dated September 13, 2018, insofar as appealed from, upon reargument, adhered to the original determination in the order dated May 7, 2018. ORDERED that the appeal from the order dated May 7, 2018, is dismissed, as that order was superseded by the order dated September 13, 2018, made upon reargument; and it is further, ORDERED that the order dated September 13, 2018, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiff commenced this action against the defendants, Chanae Pierce, Newburgh Beacon Bus Corp. (hereinafter Newburgh Bus), and Leprechaun Lines, Inc., to recover damages for injuries the plaintiff alleges he sustained when a bus driven by Pierce collided with his vehicle in Newburgh, Orange County. Thereafter, the defendants moved for summary judgment dismissing the complaint on the ground, inter alia, that the plaintiff failed to serve a timely notice of claim on the nonparty County of Orange within 90 days of the accrual of his claim pursuant to General Municipal Law §50-e. The defendants established that the bus driven by Pierce was owned by the County, and was leased by the defendant Newburgh Bus, and that the County also contracted with Newburgh Bus to provide public transportation to the residents of the County, by submitting, among other things, the deposition testimony of Pierce, the contract documents between Newburgh Bus and the County, and a copy of Local Law No. 14 of 1974 of the County of Orange authorizing the County to enter into such contracts. The defendants also submitted an affidavit of Warren Decker, Newburgh Bus’s Safety Director, together with Pierce’s paystubs and an accident report dated March 5, 2015. The service contract between the County and Newburgh Bus contained a clause requiring Newburgh Bus to indemnify the County. In an order dated May 7, 2018, the Supreme Court granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff did not serve a timely notice of claim on the County. In an order dated September 13, 2018, the court, upon reargument, adhered to its original determination. The plaintiff appeals. We agree with the Supreme Court’s determination that the plaintiff was required to serve a notice of claim pursuant to General Municipal Law §50-e(1)(a). “General Municipal Law §50-e requires that a notice of claim be served within 90 days after a tort claim arises against a municipality” (Matter of City of New York v. County of Nassau, 146 AD3d 948, 949; see General Municipal Law §50-e[1][a]). Since the defendants established that the County had a statutory duty to operate a transit system, “[t]he imposition of such duty created an obligation that the [C]ounty indemnify [Newburgh Bus] for any damages recovered against it (General Municipal Law, §50-b, subd 1) and therefore a notice of claim was required” (Coleman v. Westchester St. Transp. Co., 57 NY2d 734, 735). The plaintiff’s remaining contentions are without merit. AUSTIN, J.P., DUFFY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
By Scheinkman, P.J.; Duffy, Barros, Wooten, JJ. TATIANA CAMES, res, v. RANDOLPH CRAIG, app, ET AL., def — (Index No. 512752/15) Morris Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant. Rubenstein & Rynecki, Brooklyn, NY (Harper A. Smith of counsel), for respondent. In an action to recover damages for personal injuries, the defendant Randolph Craig appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated August 2, 2017. The order, insofar as appealed from, denied that defendant’s renewed motion pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross claims insofar as asserted against him. ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the renewed motion of the defendant Randolph Craig pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross claims insofar as asserted against him is granted. The plaintiff commenced this action to recover damages for personal injuries which she alleges she sustained in July 2014 when a vehicle in which she was a passenger, which was operated by her fiancé, the defendant Randolph Craig, was involved in an accident with a vehicle which was operated by the defendant Floyd Joseph. After the Supreme Court denied, with leave to renew, that branch of Craig’s original motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross claims insofar as asserted against him, Craig renewed the motion on the ground that the plaintiff executed a release of all claims against him arising out of the accident in exchange for a payment of $500. In the order appealed from, the court, inter alia, denied Craig’s renewed motion. We reverse insofar as appealed from. “A party may move for judgment dismissing one or more causes of action asserted against him [or her] 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’” (Rivera v. Wyckoff Hgts. Med. Ctr., 113 AD3d 667, 670, quoting Schiller v. Guthrie, 102 AD3d 852, 853). “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, 92 NY2d 934, 935, quoting Mangini v. McClurg, 24 NY2d 556, 563). “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. América Móvil, S.A.B. de C.V., 17 NY3d 269, 276, quoting Global Mins & Metal Corp. v. Holme, 35 AD3d 93, 98). “Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release ‘shifts the burden…to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release’” (Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 NY3d at 276, quoting Fleming v. Ponziani, 24 NY2d 105, 111; Davis v. Rochdale Vil., Inc., 109 AD3d 867, 867). Here, in support of his renewed motion, Craig submitted, inter alia, a copy of a release signed by the plaintiff, in which the plaintiff agreed to release Craig from any and all claims she might have in connection with the automobile accident in exchange for receipt of a payment of $500. Thus, the express terms of the release barred the plaintiff from pursuing this action insofar as asserted against Craig (see Liotti v. Galasso, Langione & Botter, 128 AD3d 912, 912; Davis v. Rochdale Vil., Inc., 109 AD3d at 867). In opposition, the plaintiff failed to raise a triable issue of fact as to whether there was fraud, mutual mistake, or some other ground sufficient to set aside the release (see Liotti v. Galasso, Langione & Botter, 128 AD3d at 912; Davis v. Rochdale Vil., Inc., 109 AD3d at 867). Accordingly, the Supreme Court should have granted Craig’s renewed motion pursuant to CPLR 3211(a)(5) to dismiss the complaint and all cross claims insofar as asserted against him. Craig’s remaining contention is improperly raised for the first time on appeal and, in any event, need not be considered in light of our determination. SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur.
