| Leeds, Morelli & Brown, P.C. v Hernandez |
| 2008 NY Slip Op 08097 [55 AD3d 794] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Leeds, Morelli & Brown, P.C., Respondent, v ConnieHernandez et al., Defendants and Third-Party Plaintiffs-Appellants. Michael A. Gentile et al.,Third-Party Defendants; Leeds, Morelli & Brown, P.C., et al., Third-PartyDefendants-Respondents. |
—[*1] Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Shari C. Lewis, and Merril S. Biscone ofcounsel), for plaintiff/counterclaim defendant-respondent and third-partydefendants-respondents.
In an action for injunctive relief and to recover damages for breach of two settlement agreements,(1) the defendants appeal from an order of the Supreme Court, Nassau County (Warshawsky, J.),dated August 10, 2006, which granted the motion of the plaintiff Leeds, Morelli & Brown, P.C., andthe third-party defendants Lenard Leeds, Steven A. Morelli, and Jeffrey K. Brown for summaryjudgment on the complaint and dismissing the counterclaim and third-party complaint insofar as assertedagainst them, (2) the defendant Connie Hernandez appeals from a judgment of the same court enteredFebruary 7, 2007, which, upon the order, inter alia, is in favor of the plaintiff and against her in the totalsum of $73,680.74, and (3) the defendant L'Oreal Diaz appeals from a judgment of the same court,also entered February 7, 2007, which, upon the order, among other things, is in favor of the plaintiffand against her in the total sum of $66,926.67.
Ordered that the appeal from the order is dismissed; and it is further,[*2]
Ordered that the judgments are affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendants and third-partyplaintiffs-appellants.
In opposition to the plaintiff's prima facie showing that the appellants breached the subjectsettlement agreements, the appellants failed to raise a triable issue of fact (see Jackson Hgts. Care Ctr., LLC v Bloch,39 AD3d 477 [2007]). Contrary to the appellants' contention, they failed to offer anevidentiary basis demonstrating that further discovery may lead to relevant evidence, as opposed tomere hope and speculation as to what additional discovery would uncover (see Kimyagarov v Nixon Taxi Corp., 45AD3d 736, 737 [2007]; Lopez v WSDistrib., Inc., 34 AD3d 759 [2006]). Accordingly, the Supreme Court properly granted thatbranch of the motion which was for summary judgment on the complaint.
Furthermore, the Supreme Court properly dismissed the counterclaim and third-party complaintinsofar as asserted against the plaintiff Leeds, Morelli & Brown, P.C., and the third-party defendantsLenard Leeds, Steven A. Morelli, and Jeffrey K. Brown. "To avoid a release on the ground of fraud, aparty must allege every material element of that cause of action with specific and detailed evidence inthe record sufficient to establish a prima facie case" (Shklovskiy v Khan, 273 AD2d 371, 372[2000]). Here, the appellants' allegations of fraud were insufficient to avoid the release (see Liling vSegal, 220 AD2d 724, 726 [1995]).
The appellants' remaining contentions are unpreserved for appellate review, are without merit, orneed not be reached in light of our determination. Rivera, J.P., Dillon, Covello and Angiolillo, JJ.,concur.