| Alvarez v Amicucci |
| 2011 NY Slip Op 01606 [82 AD3d 687] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Melanie Alvarez et al., Respondents, v John Amicucci etal., Appellants. |
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In an action, inter alia, for a judgment declaring that an agreement between the parties datedJune 7, 1995, is in full force and effect, the defendants appeal from an order of the SupremeCourt, Westchester County (Lefkowitz, J.), dated September 21, 2009, which denied their motionpursuant to CPLR 3211 (a) to dismiss the complaint. Justice Cohen has been substituted for thelate Justice Fisher (see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 (a) to dismiss the complaint is granted.
On June 7, 1995, the plaintiffs entered into an agreement (hereinafter the 1995 agreement)with the defendant John Amicucci, who owned all of the stock of the defendant DeFoeCorporation (hereinafter DeFoe) and two affiliated corporations, the defendant American ViaductCorp. and the defendant Eastern Sales Corp. Pursuant to the 1995 agreement, each of theplaintiffs was to receive 12½% of the net profits of DeFoe, beginning with the fiscal yearending on December 31, 1995. Two years later the parties entered into a general release and holdharmless agreement (hereinafter the 1997 release) in which all of the parties agreed to waive,release, discharge, and forever relinquish any and all claims of any kind, which they had in thepast or in the future as against each other.
In July 2009, 14 years after entering into the 1995 agreement, the plaintiffs commenced thisaction against the defendants seeking a declaration that the 1995 agreement was in full force andeffect and directing the defendants to comply with the terms and conditions of the 1995agreement.
In lieu of answering the complaint, the defendants moved pursuant to CPLR 3211 (a) (1), (5)and (7) to dismiss the complaint. They argued, inter alia, that the 1997 release constituteddocumentary evidence requiring the dismissal of the action pursuant to CPLR 3211 (a) (1) as itunambiguously released the defendants of liability under the 1995 agreement and that had theparties intended to continue their financial arrangement under the 1995 agreement, languagedemonstrating such intention would have been included therein.
In opposition, the plaintiffs asserted, among other things, that the 1997 release only pertainedto claims up to and including the date of execution, and the 1997 release was ambiguous.[*2]
The Supreme Court denied the defendants' motion todismiss. We reverse.
A dismissal is warranted pursuant to CPLR 3211 (a) (1) "only if the documentary evidencesubmitted conclusively establishes a defense to the asserted claims as a matter of law" (Leonv Martinez, 84 NY2d 83, 88 [1994]; see Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928,930 [2010]). The 1997 release clearly states that the parties agreed "to forever release andirrevocably relinquish all claims of every kind which any of them now have or had in the past ormay have in the future, arising out of events occurring up to and including the date of thisagreement." The 1997 release also states that it "extends to and encompasses the completerelease of any and all liabilities from any events, agreements, documents, claims, property,interests, or other things of value . . . so as to cause any event, agreement,document, claim, property, interest or other things of value to be waived and nullified fromthe beginning of time to the date of this release" (emphasis added).
A written agreement that is complete, clear, and unambiguous on its face must be enforcedaccording to the plain meaning of its terms (see W.W.W. Assoc. v Giancontieri, 77NY2d 157, 162 [1990]; NormaReynolds Realty, Inc. v Edelman, 29 AD3d 969 [2006]). Given the clear, unambiguouslanguage of the 1997 release, parol evidence cannot be considered to alter or vary its terms(see Greenfield v Philles Records, 98 NY2d 562, 569 [2002]; W.W.W. Assoc. vGiancontieri, 77 NY2d at 162). Thus, the 1997 release encompasses the prior 1995agreement, and the plaintiffs' action is barred (see CPLR 3211 [a] [5]).
In light of the foregoing, the plaintiffs' remaining contentions have been rendered academic.Angiolillo, J.P., Belen, Austin and Cohen, JJ., concur.