Opinion
March 13, 1998
Appeal from the Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.)
Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint on the ground of release. Defendants met their initial burden, and plaintiff failed to raise a triable issue of fact concerning her contention that defendants obtained the release through fraud or misrepresentation (see, Verstreate v. Cohen, 242 A.D.2d 862). Plaintiff failed to offer proof in admissible form that she was misled by the statement of the "claims specialist" that, in his opinion, she did not have a serious injury. Therefore, "[p]laintiff has made no showing that [her] execution of the release was tainted by fraud, mutual mistake, duress or illegality" (K3 Equip. Corp. v. Kintner, 233 A.D.2d 556, 558).
Defendants' motion for summary judgment, made 62 days after the effective date of the amendment to CPLR 3212 (a), is timely (see, Auger v. State of New York, 236 A.D.2d 177; see also, Phoenix Garden Rest. v. Chu, 245 A.D.2d 164).