The following e-filed documents, listed by NYSCEF document number (Motion 012) 339, 340, 341, 342, 343, 344, 345, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, 358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 419, 434, 436, 437, 438, 439, 440, 441, 442, 443, 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 463, 464 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER. DECISION + ORDER ON MOTION Plaintiff 179-94 ST LLC (179-94 ST) is the owner of real property located at 179 East 94th Street, New York, New York (the building), it purchased from defendant Gago Properties LLC on October 6, 2014. Plaintiff Michael Kaplan is a member of 179-94 ST and plaintiff Yashar Foundation Inc. is the net lessee of the building. After 179-94 ST purchased the building, plaintiffs learned that one of the units was occupied by defendant Sania Hassan, who had entered into a 15-year lease with Gago Properties LLC, a month before the sale. As a result, plaintiffs commenced three separate actions related to the sale, claiming, in relevant part, that defendants Gago Properties LLC and Robert Gago (Gago Defendants) and their attorney, defendant Brian Limmer, defrauded plaintiffs by failing to disclose Hassan’ s tenancy in the building and making misrepresentations in connection with the sale. Since then, the three related actions were consolidated into this action and some of the defendants have settled with plaintiffs. Limmer now moves pursuant to CPLR §3212 for summary judgment seeking dismissal of the claims asserted against him by 179-94 ST as well as dismissal of the cross-claims for legal malpractice asserted by the Gago Defendants. Plaintiffs Michael Kaplan and Yashar Foundation have not asserted any claims against Limmer. In support of his motion, Limmer argues that 179-94 ST’ s claims against him are barred by the broad release executed on October 14, 2014, which provides that releasor, 179-94 ST, for the sum of $160,000 and the transfer of the deed, “hereby releases and discharges Gago Properties LLC and Robert Gago, [and] its…attorneys…from all actions, causes of action…from the beginning of the world to the day of the date of this release” (Affm of Keith Roussel dated June 29, 2022, Exh. 31). 179-94 ST argues that despite its broad language, the release does not bar its claims against Limmer because the release was only meant to cover the assignment of the mortgage and the discontinuance of the pending foreclosure action against the property and not any claims arising from the sale of the property. In support, 179-94 ST cites to a contemporaneous email relating to the release as well as affidavits from its principals which explain the intended scope of the release. A release is a type of contract and therefore its interpretation is governed by general principals of contract law. “As with contracts generally, the courts must look to the language of a release — the words used by the parties-to determine their intent, resorting to extrinsic evidence only when the court concludes as a matter of law that the contract is ambiguous (Wells v. Shearson Lehman/Am. Exp., Inc., 72 N.Y.2d 11, 19 [1988]). 179-94 ST relies on Johnson v. Lebanese Am. Univ., 84 A.D.3d 427 (1st Dep’t 2011) to support its argument that the court must look to extrinsic evidence to determine whether the release applies to claims related to the sale of the property. However, unlike in Johnson, there is no credible contention here that the release was not “fairly and knowingly made” (Id. at 430). Indeed, unlike the unrepresented employee in Johnson, 179-94 ST and its members are sophisticated real estate developers who were represented by an attorney in this commercial transaction. If they had intended to limit the release to the assignment of the mortgage and the foreclosure action, they should have explicitly stated this in the release rather than executing a broad release for any and all claims. The plain language of the release is clear and unambiguous and demonstrates the parties’ intent to settle all claims 179-94 ST had or could have against the Gago Defendants and their agents, including their attorney, Limmer. Thus, because the language of the release is clear and unambiguous on its face, the extrinsic evidence offered by 179-94 ST cannot be examined (Goldberg v. Manufacturers Life Ins. Co., 242 A.D.2d 175, 181 [1st Dep't 1998] ["that plaintiffs now profess their subjective intention was not to surrender any rights under policy 2 does not defeat enforcement of the clear intent of the release.]; see also Ackoff-Ortega v. Windswept Pacific Entertainment, 120 F.Supp.2d 273,282 [S.D.N.Y. 2000]). Accordingly, 179-94 ST’s claims against Limmer must be dismissed. Regarding the cross-claims asserted against Limmer by the Gago Defendants for legal malpractice, Limmer submits an expert report from Serge Joseph, Esq., stating that in his professional opinion, Limmer did not act negligently in his representation of the Gago Defendants (Roussel Affm, Exh. 34). In opposition, the Gago Defendants fail to provide any evidence or point to any specific facts to support their malpractice claim. Accordingly, it is ORDERED that defendant Limmer’s motion is granted and all claims and cross-claims asserted against said defendant are dismissed with costs and disbursements awarded to defendant Limmer and the Clerk shall enter judgment accordingly; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office ( 60 Centre Street, Room 119), who are directed to mark the court’s records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk’s Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s website at the address www.nycourts.gov/supctmanh)]. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: November 16, 2022
