Opinion
No. 2021-05595 Index No. 54149/20
12-13-2023
Benjamin Israel, et al., appellants, v. Progressive Casualty Insurance Co., et al., respondents.
Bailly and McMillan, LLP, White Plains, NY (Keith McMillan of counsel), for appellants. Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondents.
Bailly and McMillan, LLP, White Plains, NY (Keith McMillan of counsel), for appellants.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Kevin G. Faley of counsel), for respondents.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for fraudulent inducement and to rescind a release, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated July 12, 2021. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiffs' cross-motion for leave to amend the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for fraudulent inducement and, in effect, to rescind the release based on a unilateral mistake insofar as asserted by the plaintiff Benjamin Israel, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, with costs to the plaintiffs.
In 2020, the plaintiffs commenced this action, inter alia, to recover damages for fraudulent inducement and to rescind a release. Prior thereto, in October 2015, while the plaintiff Benjamin Israel was driving a vehicle registered in the name of his wife, the plaintiff Kunjamma Ben, he was involved in a collision with a vehicle insured by the defendant Progressive Casualty Insurance Co. (hereinafter Progressive). On November 12, 2015, Israel signed a document entitled "FULL RELEASE OF ALL CLAIMS AND DEMANDS" in exchange for $1,000. Israel alleged that English is his second language, his ability to read English is limited, he had left his reading glasses in his vehicle when he signed the document, and he relied on the oral representations of Progressive's agent, the defendant Katrina Roberts, in signing the document. Regarding Israel's workers' compensation claim, Roberts allegedly told Israel that only a property damage claim was being settled. Israel allegedly was told that the release was for property damage only, not for personal injuries.
The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on various grounds. The plaintiffs cross-moved for leave to amend the complaint. In an order dated July 12, 2021, the Supreme Court granted the defendants' motion and denied the plaintiffs' cross-motion, determining, inter alia, that the complaint failed to state a cause of action. The plaintiffs appeal.
"'To state a [cause of action to recover damages] for fraudulent inducement, there must be a knowing misrepresentation of material present fact, which is intended to deceive another party and induce that party to act on it, resulting in injury'" (651 Bay St., LLC v Discenza, 189 A.D.3d 952, 953-954, quoting Tsinias Enters. Ltd. v Toza Grocery, Inc., 172 A.D.3d 1271, 1273). "The plaintiff must also establish that he or she reasonably relied upon the alleged misrepresentation" (651 Bay St., LLC v Discenza, 189 A.D.3d at 954). "A party is under an obligation to read a document before signing it, and cannot generally avoid the effect of the document on the ground that he or she did not read it or know its contents" (Matter of Augustine v BankUnited FSB, 75 A.D.3d 596, 597). However, "there are situations where an instrument will be deemed void because the signer was unaware of the nature of the instrument he or she was signing, such as where the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him [or her] by the other party, or even by a stranger" (Cash v Titan Fin. Servs., Inc., 58 A.D.3d 785, 788 [citation and internal quotation marks omitted]).
Here, the complaint stated a cause of action by Israel to recover damages for fraudulent inducement against Progressive and Roberts by alleging, inter alia, that English is Israel's second language, his ability to read English is limited, and he justifiably relied on the misrepresentations made by Progressive's agent, Roberts, as to the effect of the release, which has resulted in financial damages to him (see Feldman v Byrne, 210 A.D.3d 646, 649; Emby Hosiery Corp. v Tawil, 196 A.D.3d 462, 464-465).
Moreover, the complaint stated a cause of action by Israel, in effect, to rescind the release based on a unilateral mistake against Progressive and Roberts, as the complaint alleged that Israel's mistake was induced by fraudulent misrepresentation (see Matter of Kotick v Shvachko, 130 A.D.3d 472, 473; Matter of Toledano v Eliyahu, 102 A.D.3d 879, 879-880).
However, the complaint failed to state a cause of action by Ben to recover damages for fraudulent inducement or, in effect, to rescind the release based on a unilateral mistake, as she did not sign the release, and the plaintiffs failed to allege any injury to her with regard thereto (see generally Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 143).
Additionally, the cause of action, in effect, to rescind the release for lack of consideration is without merit, as Israel received $1,000 in return for signing the release (see Touloumis v Chalem, 156 A.D.2d 230, 232).
Further, inasmuch as the plaintiffs' allegations demonstrate that this action is merely a private contract dispute, the plaintiffs failed to allege a consumer-oriented deceptive act or practice within the meaning of General Business Law § 349 (see Carlson v American Intl. Group, Inc., 30 N.Y.3d 288, 309).
The plaintiffs' contention that the Supreme Court improvidently exercised its discretion in denying their cross-motion for leave to amend the complaint is without merit. The proposed causes of action against the proposed new defendants, inter alia, to recover damages for personal injuries are time-barred (see CPLR 214[5]; Champion Mtge. Co. v Antoine, 214 A.D.3d 698, 701), and the plaintiffs failed to establish that they were prevented from commencing an action against the proposed new defendants within the applicable statute of limitations due to the plaintiffs' reasonable reliance on any deception, fraud, or misrepresentation by the proposed new defendants (see generally Putter v North Shore Univ. Hosp., 7 N.Y.3d 548, 552-553; Cedarwood Assoc., LLC v County of Nassau, 211 A.D.3d 799, 799-800).
In light of our determination, we need not reach the plaintiffs' remaining contention.
DILLON, J.P., CHRISTOPHER, WOOTEN and TAYLOR, JJ., concur.