Opinion
2016-13242 Index No. 11625/11
08-21-2019
BURNSIDE 711, LLC, appellant, v. AMERADA HESS CORPORATION, respondent.
Herold Law, P.A., New York, N.Y. (Craig S. Provorny, Warren and Arjun Shah of counsel), for appellant. Kelley Drye & Warren LLP, New York, N.Y. (Jonathan K. Cooperman and Owanaemi A. Briggs of counsel), for respondent.
Herold Law, P.A., New York, N.Y. (Craig S. Provorny, Warren and Arjun Shah of counsel), for appellant.
Kelley Drye & Warren LLP, New York, N.Y. (Jonathan K. Cooperman and Owanaemi A. Briggs of counsel), for respondent.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed, with costs.
The plaintiff, the owner of the subject property, alleged that between 1964 and 1979, the defendant operated a gas station on the property pursuant to a lease with a former owner. It was later learned that underground gasoline tanks on the property had apparently leaked and contaminated the soil. The New York State Department of Environmental Conservation directed the plaintiff to remediate the site, and the remediation was completed in 2010. In 2011, the plaintiff commenced this action, seeking, inter alia, a judgment declaring that it is entitled to indemnification and damages resulting from the defendant's discharge of petroleum on the property. The defendant, relying on two releases executed in 1984 by the defendant and a former owner of the property, moved pursuant to CPLR 3211(a)(1) and (5) to dismiss the complaint. The Supreme Court granted the defendant's motion. This Court reversed, determining that "the two releases at issue, whether construed together or separately, are ambiguous regarding whether the parties intended that they cover unknown claims for environmental contamination" ( Burnside 711 LLC v. Amerada Hess Corp., 109 A.D.3d 860, 861–862, 972 N.Y.S.2d 604 ).
Subsequently, after the completion of discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion based, inter alia, on its determination that "the first and second releases are ambiguous." The matter thereafter proceeded to a nonjury trial. At the conclusion of the trial, the court found that the testimony of the defendant's general counsel constituted "the only credible extrinsic evidence about the intent of the [r]eleases, which was that by including expansive broad language such as ‘any and all,’ it was unnecessary to enumerate every possible claim that could be subject to the release." The court concluded that the releases, therefore, "constitute comprehensive and broad releases that bar [the] plaintiff's current claims." Thereafter, the court issued a judgment dated June 1, 2017, in favor of the defendant and against the plaintiff dismissing the complaint with prejudice. The plaintiff appeals.
"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and we may render the judgment we find warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses" ( Bolender v. Ronin Prop. Partners, LLC, 168 A.D.3d 1032, 1035, 93 N.Y.S.3d 123 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Campbell v. Campbell, 107 A.D.3d 929, 930, 966 N.Y.S.2d 906 ; Parr v. Ronkonkoma Realty Venture I, LLC, 65 A.D.3d 1199, 1201, 885 N.Y.S.2d 522 ; ProHealth Care Assoc., LLP v. Shapiro, 46 A.D.3d 792, 793, 849 N.Y.S.2d 276 ).
"A release is a contract, and its construction is governed by contract law" ( Schiller v. Guthrie, 102 A.D.3d 852, 853, 958 N.Y.S.2d 736 [internal quotation marks omitted]; see Cardinal Holdings, Ltd. v. Indotronix Intl. Corp., 73 A.D.3d 960, 962, 902 N.Y.S.2d 123 ). "Generally, a valid release constitutes a complete bar to an action on a claim that is the subject of the release" ( Nucci v. Nucci, 118 A.D.3d 762, 763, 987 N.Y.S.2d 176 ; see Centro Empresarial Cempresa S.A. v. Ame´rica Mo´vil, S.A.B. de C.V., 17 N.Y.3d 269, 276, 929 N.Y.S.2d 3, 952 N.E.2d 995 ; Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 98, 824 N.Y.S.2d 210 ). "If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties" ( Nucci v. Nucci, 118 A.D.3d at 763, 987 N.Y.S.2d 176 ; see Booth v. 3669 Delaware, 92 N.Y.2d 934, 935, 680 N.Y.S.2d 899, 703 N.E.2d 757 ; Mangini v. McClurg, 24 N.Y.2d 556, 563, 301 N.Y.S.2d 508, 249 N.E.2d 386 ). A valid general release will apply not only to known claims, but "may encompass unknown claims, ... if the parties so intend and the agreement is ‘fairly and knowingly made’ " ( Centro Empresarial Cempresa S.A. v. Ame´rica Mo´vil, S.A.B. de C.V., 17 N.Y.3d at 276, 929 N.Y.S.2d 3, 952 N.E.2d 995, quoting Mangini v. McClurg, 24 N.Y.2d at 566–567, 301 N.Y.S.2d 508, 249 N.E.2d 386 ; see Matter of Travelers Home & Mar. Ins. Co. v. Fiumara, 164 A.D.3d 592, 593, 82 N.Y.S.3d 502 ).
" ‘However, a release may not be read to cover matters which the parties did not intend to cover’ " ( Nucci v. Nucci, 118 A.D.3d at 763, 987 N.Y.S.2d 176, quoting Desiderio v. Geico Gen. Ins. Co., 107 A.D.3d 662, 663, 967 N.Y.S.2d 392 ; see Cahill v. Regan, 5 N.Y.2d 292, 299, 184 N.Y.S.2d 348, 157 N.E.2d 505 ; Chiappone v. North Shore Univ. Hosp., 164 A.D.3d 463, 465, 83 N.Y.S.3d 113 ; Clerico v. Pollack, 148 A.D.3d 769, 771, 48 N.Y.S.3d 738 ; Wechsler v. Diamond Sugar Co., Inc., 29 A.D.3d 681, 682, 815 N.Y.S.2d 639 ). " ‘[I]ts meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given’ " ( Nucci v. Nucci, 118 A.D.3d at 763, 987 N.Y.S.2d 176, quoting Cahill v. Regan, 5 N.Y.2d at 299, 184 N.Y.S.2d 348, 157 N.E.2d 505 ; see Chiappone v. North Shore Univ. Hosp., 164 A.D.3d at 465, 83 N.Y.S.3d 113 ; Burnside 711 LLC v. Amerada Hess Corp., 109 A.D.3d at 861, 972 N.Y.S.2d 604 ). "Moreover, there is a requirement that a release covering both known and unknown injuries be fairly and knowingly made" ( Pacheco v. 32–42 55th St. Realty, LLC, 139 A.D.3d 833, 833, 33 N.Y.S.3d 301 [internal quotation marks omitted] ).
Where a releasee asserts a lack of liability based upon a general release, the burden of proof is on the releasor to show that "the general language of the release, valid on its face and properly executed, is to be limited because of a mutual mistake, or otherwise does not represent the intent of the parties" ( Mangini v. McClurg, 24 N.Y.2d at 563, 301 N.Y.S.2d 508, 249 N.E.2d 386 ; see Herson v. Kalenscher–Kirschenfeld, 164 A.D.3d 481, 482, 77 N.Y.S.3d 870 ). " ‘[I]t is not a prerequisite to the enforceability of a release that the releasor be subjectively aware of the precise claim he or she is releasing’ " ( Matter of Boatwright, 114 A.D.3d 856, 858, 980 N.Y.S.2d 554, quoting Mergler v. Crystal Prop. Assoc., 179 A.D.2d 177, 180, 583 N.Y.S.2d 229 ). Thus, at a trial encompassing an assertion by a defendant that it is not liable for the damages claimed by the plaintiff due to a general release that contains equivocal language, rendering it ambiguous on its face, the plaintiff must be afforded an opportunity to establish that the releases were not intended to deprive him or her of the claimed damages (see Weitling v. Sorenson, 254 App.Div. 539, 542, 5 N.Y.S.2d 79 ).
Here, although the releases were ambiguous on their faces as to whether they encompassed unknown claims for environmental contamination, the plaintiff failed to adduce evidence at the trial sufficient to support a finding that they did not, whereas the defendant adduced evidence showing that the releases were intended to be general releases. Accordingly, we agree with the Supreme Court's determination that this action is barred by the releases, requiring dismissal of the complaint with prejudice.
BALKIN, J.P., COHEN, MILLER and BARROS, JJ., concur.