| Matter of Brown |
| 2009 NY Slip Op 06543 [65 AD3d 1140] |
| September 15, 2009 |
| Appellate Division, Second Department |
| In the Matter of Janet M. Brown, Also Known as Janet M.Burstein, Deceased. Simone Levitt, Respondent, v Elaine Edelstein, as Administratrix ofthe Estate of Janet M. Brown, Also Known as Janet M. Burstein,Appellant. |
—[*1]
In a proceeding pursuant to SCPA 2105 to compel the return of certain personal property andto recover damages for breach of contract, Elaine Edelstein, as administratrix of the estate ofJanet M. Brown, also known as Janet M. Burstein, appeals, as limited by her brief, from so muchof an order of the Surrogate's Court, Nassau County (Riordan, S.), dated September 30, 2008, asdenied that branch of her cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss thepetition as barred by a general release.
Ordered that the order is affirmed insofar as appealed from, with costs payable by the estate.
"The meaning and scope of a release must be determined within the context of thecontroversy being settled" (Matter of Schaefer, 18 NY2d 314, 317 [1966]; Zichron Acheinu Levy, Inc. v Ilowitz,31 AD3d 756 [2006]), and a general release cannot be construed "to cover matterswhich the parties did not desire or intend to dispose of" (Cahill v Regan, 5 NY2d 292,299 [1959]; Rotondi v Drewes, 31AD3d 734, 735-736 [2006]). Contrary to the appellant's contention, the petitioner raisedfactual issues regarding the scope of the subject release based on the context and circumstancesof its execution (see generally Mangini v McClurg, 24 NY2d 556, 563 [1969]; LefrakSBN Assoc. v Kennedy Galleries, 203 AD2d 256, 257 [1994]; Perritano v Town ofMamaroneck, 126 AD2d 623, 624 [1987]). Accordingly, given the paucity of evidence inthe record relating to this pre-answer motion, it cannot definitively be determined at this juncturewhether the release was intended to cover the present claims of the petitioner (see e.g. Rimberg & Assoc., P.C. v JamaicaChamber of Commerce, Inc., 40 AD3d 1066, 1067 [2007]), and that branch of theappellant's cross motion which was pursuant to CPLR 3211 (a) (5) to dismiss the petition asbarred by a general release was properly denied (see e.g. Ofman v Campos, 12 AD3d 581 [2004]). Mastro, J.P.,Santucci, Eng and Lott, JJ., concur.