| Davis v Rochdale Vil., Inc. |
| 2013 NY Slip Op 05874 [109 AD3d 867] |
| September 18, 2013 |
| Appellate Division, Second Department |
| Alma G. Davis, Respondent, v Rochdale Village,Inc., et al., Appellants. |
—[*1] Kiley, Kiley & Kiley, PLLC, Great Neck, N.Y. (James D. Kiley of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Queens County (Lane, J.), dated April 16, 2012, whichdenied their motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on theground of release.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint is granted.
In support of their motion to dismiss the complaint, the defendants submitted arelease executed by the plaintiff, which, by its terms, barred the instant action againstthem (see CPLR 3211 [a] [5]; Schiller v Guthrie, 102 AD3d 852 [2013]; Seff v Meltzer, Lippe, Goldstein &Schlissel, P.C., 55 AD3d 592 [2008]). " ' "A release is a contract, and itsconstruction is governed by contract law" ' " (Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d960, 962 [2010], quoting Lee v Boro Realty, LLC, 39 AD3d 715, 716 [2007];see Kaminsky v Gamache, 298 AD2d 361, 361 [2002]). "A release may beinvalidated . . . for any of 'the traditional bases for setting aside writtenagreements' " (CentroEmpresarial Cempresa S.A. v AmÉrica M�vil, S.A.B. de C.V., 17 NY3d269, 276 [2011], quoting Mangini v McClurg, 24 NY2d 556, 563 [1969]).However, "a signed release 'shifts the burden of going forward . . . to the[plaintiff] to show that there has been fraud, duress or some other fact which will besufficient to void the release' " (Centro Empresarial Cempresa S.A. v Am�rica M�vil,S.A.B. de C.V., 17 NY3d at 276, quoting Fleming v Ponziani, 24 NY2d 105,111 [1969]; see Haynes v Garez, 304 AD2d 714, 715 [2003]; Shklovskiy vKhan, 273 AD2d 371, 372 [2000]).
Here, the plaintiff failed to demonstrate that there was fraud, duress, or some otherfact sufficient to void the release. There is no merit to the plaintiff's contention that shelacked the mental capacity to enter into the release, and she failed to come forward withany valid excuse for failing to read the release prior to signing it (see Matter of Augustine vBankUnited FSB, 75 AD3d 596, 597 [2010]; Cash v Titan Fin. Servs., Inc.,58 AD3d 785, 788 [2009]). In addition, the language of the release was clear andunambiguous, and the plaintiff's conclusory and unsubstantiated claim that she intendedthe release to only apply to her medical expenses, rather than to any claim for personal[*2]injuries, is insufficient to set aside the release (see Lee v Boro Realty, LLC,39 AD3d 715 [2007]).
Accordingly, the release should have been given effect, and the Supreme Courtshould have granted the defendants' motion to dismiss the complaint (see CentroEmpresarial Cempresa S.A. v Am�rica M�vil, S.A.B. de C.V., 17 NY3d at 277-280).Angiolillo, J.P., Chambers, Sgroi and Cohen, JJ., concur.