DECISION AND ORDER I. INTRODUCTION In this action for discrimination based on age, disability, and gender and for retaliation, defendants move to dismiss the amended complaint based on documentary evidence: a release that plaintiff signed November 28, 2016, barring her discrimination and retaliation claims. C.P.L.R. §3211(a)(1) and (5). Defendants also seek a declaratory judgment that the release is valid and enforceable. C.P.L.R. §3001. The court grants defendants’ motion to dismiss plaintiff’s claims that the release is void and declares that it is not void due to her incapacity, duress, the release’s ambiguity, its lack of consideration, and its violation of statutory requirements, without opposition. C.P.L.R. §§3001, 3211(a)(1) and (5); N.Y. Gen. Oblig. Law §15303; Allen v. Riese Org., Inc., 106 A.D.3d 514, 515 (1st Dep’t 2013); Serbin v. Rodman Principal Invs., LLC, 87 A.D.3d 870, 870 (1st Dep’t 2011). The court denies defendants’ motion to dismiss plaintiff’s claim that the release is void because it was fraudulently induced, however, as explained below. If it is void, then of course it does not bar her discrimination and retaliation claims. GoSmile, Inc. v. Levine, 81 A.D.3d 77, 82 (1st Dep’t 2010); Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 39 (1st Dep’t 2005). Plaintiff timely filed the amended complaint before defendants served any answer to her original complaint. C.P.L.R. §3025(a). Although plaintiff’s amended complaint repeatedly refers to “other similarly situated members of her protected class,” Aff. of Elise M. Bloom Ex. 1 (Am. V. Compl.)
2, 4, 145, plaintiff has clarified that her amended complaint does not allege a class action. Therefore defendants’ motion to dismiss plaintiff’s class action allegations is academic. II. THE ALLEGED FRAUDULENT INDUCEMENT To void the release due to its fraudulent inducement, plaintiff must show that defendants misrepresented or concealed a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Centro Empresarial Cempresa S.A. v. América Móvil, S.A.B. de C.V., 17 N.Y.3d 269, 276 (2011); Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Laduzinski v. Alvarez & Marsal Taxand LLC, 132 A.D.3d 164, 167 (1st Dep’t 2015); Perrotti v. Becker, Glynn, Melamed & Muffy LLP, 82 A.D.3d 495, 498 (1st Dep’t 2011). Plaintiff alleges that she signed the agreement releasing her claims against defendants, her former employer and former supervisor, based on their misrepresentation that her position was eliminated as part of a reduction in force. An attachment to the release identifies six other employees in her media department whose employment was terminated simultaneously with hers as part of a reduction in force. Bloom Aff. Ex. 1 (Am. V. Compl.) 103. Defendants insist that this document refutes plaintiff’s claim of fraudulent inducement, but the attachment only supports her claim that defendants gave her a reason for her termination, a reduction in force, that was false. Plaintiff claims that in 2019 she learned that she and those six other employees, all over age 40, id.
