| Seff v Meltzer, Lippe, Goldstein & Schlissel, P.C. |
| 2008 NY Slip Op 07650 [55 AD3d 592] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Florence Seff et al., Respondents, v Meltzer, Lippe, Goldstein &Schlissel, P.C., et al., Appellants, et al., Defendant. |
—[*1] Garcia & Stallone, Melville, N.Y. (Karl Zamurs of counsel), for appellant Barbara Greenberg. Devereaux Weidenbaum, P.C., New York, N.Y. (Michael J. Devereaux and Mayu Miyashita ofcounsel), for respondents.
In an action, inter alia, to recover damages for breach of fiduciary duty and defamation, thedefendants Meltzer, Lippe, Goldstein & Schlissel, P.C., and David L. Schaffer appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), datedMarch 6, 2007, as denied those branches of their motion which were pursuant to CPLR 3016 (b) todismiss the complaint insofar as asserted against them and for summary judgment dismissing thecomplaint insofar as asserted against them, based on a release and the defendant Barbara Greenbergseparately appeals, as limited by her brief, from so much of the same order as denied that branch of hermotion which was for summary judgment dismissing the complaint insofar as asserted against her basedon a release.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable to the appellants appearing separately and filing separate briefs, those branches of therespective motions of the defendants Meltzer, Lippe, Goldstein & Schlissel, P.C., and David L.Schaffer, and the defendant Barbara Greenberg which were for summary judgment dismissing thecomplaint insofar as asserted against each of them are granted, and that branch of the motion of thedefendants Meltzer, Lippe, [*2]Goldstein & Schlissel, P.C., and DavidL. Schaffer which was pursuant to CPLR 3016 (b) to dismiss the complaint insofar as asserted againstthem is denied as academic.
The plaintiffs Florence Seff and Precise Reporting, Inc. (hereinafter the plaintiffs), commenced thisaction, inter alia, to recover damages for breach of fiduciary duty and defamation, asserting causes ofaction against the defendants Meltzer, Lippe, Goldstein & Schlissel, P.C., David L. Schaffer, andBarbara Greenberg (hereinafter collectively the defendants). The defendants moved, among otherthings, for summary judgment dismissing the complaint insofar as asserted against each of them. Thedefendants demonstrated their prima facie entitlement to judgment as a matter of law by presentingevidence that the plaintiffs executed general releases in their favor, which barred the instant action as tothem (see CPLR 3211 [a] [5]). "A release will not be treated lightly, and will be set aside by acourt only for duress, illegality, fraud, or mutual mistake" (Shklovskiy v Khan, 273 AD2d 371,372 [2000]; see Mangini v McClurg, 24 NY2d 556, 563 [1969]; Haynes v Garez,304 AD2d 714, 715 [2003]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Friends of Avalon Preparatory School vEhrenfeld, 6 AD3d 658, 659 [2004]). Furthermore, contrary to the plaintiffs' contention, thebranches of the defendants' motions predicated on the releases did not offend the rule againstsuccessive motions for summary judgment (see Staib v City of New York, 289 AD2d 560,561 [2001]).
Accordingly, those branches of the defendants' motions which were for summary judgmentdismissing the complaint insofar as asserted against each of them, and which were based on thereleases, should have been granted.
The parties' remaining contentions either are without merit or need not be reached in light of ourdetermination. Fisher, J.P., Dillon, McCarthy and Belen, JJ., concur.