| Desiderio v Geico Gen. Ins. Co. |
| 2013 NY Slip Op 03964 [107 AD3d 662] |
| June 5, 2013 |
| Appellate Division, Second Department |
| John S. Desiderio, Respondent, v Geico GeneralInsurance Company, Appellant. |
—[*1] Randall S. Ferguson, Roslyn Heights, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of an insurance contract, thedefendant appeals from an order of the Supreme Court, Nassau County (Murphy, J.),entered October 11, 2012, which denied its motion pursuant to CPLR 3211 (a) (5) todismiss the complaint as barred by a release.
Ordered that the order is affirmed, with costs.
On April 19, 2010, a vehicle struck the plaintiff's house, crashed through thebedroom wall, and came to rest on top of the bed in which the plaintiff was sleeping. Atthe time of the incident, the plaintiff was insured by the defendant under a FamilyAutomobile Policy (hereinafter the policy) which included coverage for SupplementaryUninsured/Underinsured Motorists benefits (hereinafter SUM benefits). In or aroundJune 2010, the plaintiff filed a claim with the defendant seeking the payment of SUMbenefits for the injuries he sustained in the incident. On August 8, 2011, the claim wentto arbitration. After a hearing, the arbitrator awarded the plaintiff $100,000, the fullamount of SUM benefits available under the policy. On September 9, 2011, the plaintiffexecuted a document entitled "Release and Trust Agreement (Supplementary Uninsuredand Underinsured Motorist Claim)" (hereinafter the Release and Trust Agreement). InApril 2012, the plaintiff commenced this action, inter alia, alleging that the defendantbreached the insurance contract by failing to investigate, bargain for and settle his claimsfor SUM benefits in good faith. The Supreme Court denied the defendant's motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the Release andTrust Agreement. The defendant appeals.
"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]; see Kaprall v WE: Women'sEntertainment, LLC, 74 AD3d 1151, 1152 [2010]). Where a release containsclear and unambiguous language, the signing of it is "a jural act binding on the parties"(Booth v 3669 Delaware, 92 NY2d 934, 935 [1998] [internal quotation marksomitted]; see Mangini v McClurg, 24 NY2d 556, 563 [1969]; ElectronicBankcard Sys. v Shiner, 305 AD2d 366, 368 [2003]). However, a release may not beread to cover matters which the parties did not intend to cover (see Cahill vRegan, 5 NY2d 292, 299 [1959]; Wechsler v [*2]Diamond Sugar Co.,Inc., 29 AD3d 681, 682 [2006]; Stone v Aronwald & Pykett, 275 AD2d706, 707 [2000]). Moreover, while a release may encompass unknown claims, it must beclear that the parties so intended by the use of broad, all-encompassing language (see Centro Empresarial CempresaS.A. v AmÉrica M�vil, S.A.B. de C.V., 17 NY3d 269, 276-277 [2011]).Where a court cannot definitively determine whether the scope of a release was intendedto cover the allegations in a complaint, a motion pursuant to CPLR 3211 (a) (5) todismiss the complaint must be denied (see Storman v Storman, 90 AD3d 895, 898 [2011];Kaprall v WE: Women's Entertainment, LLC, 74 AD3d at 1152).
Here, the Release and Trust Agreement did not contain broad, all-encompassinglanguage but, in fact, contained language limiting its reach to compensation for personalinjuries under the SUM Endorsement. The defendant contends that this action is barredby the Release and Trust Agreement because it arises out of the plaintiff's claim forcompensation under the SUM Endorsement. However, it cannot be definitivelydetermined at this juncture whether the scope of the Release and Trust Agreement wasintended to cover the allegations in the complaint or whether its purpose was, amongother things, to protect the defendant's subrogation rights (see Storman vStorman, 90 AD3d at 898; Kaprall v WE: Women's Entertainment, LLC, 74AD3d at 1152; cf. Augello vKoenig-Rivkin, 56 AD3d 503, 503-504 [2008]).
The defendant's remaining contentions either are without merit, are improperly raisedfor the first time on appeal, or have been rendered academic by our determination.Dillon, J.P., Chambers, Hall and Hinds-Radix, JJ., concur.