Opinion
(892) CA 00-03002
July 3, 2001.
Appeal from Order of Supreme Court, Monroe County, Lunn, J. — Dismiss Pleading.
Order unanimously affirmed without costs.
PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, KEHOE AND BURNS, JJ.
Memorandum:
Supreme Court properly denied the motion of third-party defendant to dismiss the third-party complaint on the ground of release, without prejudice to renew the motion following discovery into the circumstances surrounding the negotiation and execution of the release ( see, Best v. Yutaka, 90 N.Y.2d 833, 834). Given the timing of the release and the circumstances surrounding its execution, in particular, the state of the parties' knowledge at that time, the actual controversy or dispute within the parties' contemplation, and the consideration exchanged for the release ( see, Best v. Yutaka, supra, at 834; Cahill v. Regan, 5 N.Y.2d 292, 299-300; Gibli v. Kadosh, 279 A.D.2d 35, 38-40; Stone v. Aronwald Pykett, 275 A.D.2d 706, 707), we conclude that there are questions of fact with regard to the issues of mutual mistake and the parties' intent in entering into the release.