Opinion
April 26, 1990
Appeal from the Supreme Court, New York County (Francis N. Pecora, J.).
Plaintiff sued for breach of an employment agreement and defendants interposed the affirmative defense of a release signed by plaintiff in consideration of the payment of $50,000. Plaintiff claimed that the release was signed under duress, but never returned the $50,000 received as consideration.
A contract allegedly executed under duress is voidable, not void, and a plaintiff must demonstrate his decision to challenge that contract rather than to ratify it by accepting its benefits, even where he faces the hard choice of eschewing those benefits in order to pursue his legal rights (Equal Employment Opportunity Commn. v. American Express Publ. Corp., 681 F. Supp. 216) . The validity of the release is governed by the law of Michigan where the transaction took place (see, Intercontinental Planning v. Daystrom, Inc., 24 N.Y.2d 372, 382). Michigan has long held the view that before execution of a release can be challenged on the ground of fraud or duress, the consideration received must be returned in order to place the parties at status quo ante (Leahan v. Stroh Brewery Co., 420 Mich. 108, 359 N.W.2d 524). This is also the prevailing view in Florida, where the negotiations over the release took place (cf., Sall v Luxenberg, 302 So.2d 167).
The same issue was decided against plaintiff in 1986, in a similar breach of contract action against defendants in the United States District Court for the Middle District of Florida (No. 82-200-Orl-Civ-R, affd without opn 800 F.2d 266, cert denied 480 U.S. 909, reh denied 481 U.S. 1025), and that disposition "on the merits" must thus be considered res judicata of the claim herein (Miller Corp. v. Gazocean Intl., 394 F. Supp. 1246, 1248; McKinney v. City of New York, 78 A.D.2d 884, 886).
There is no basis in the record on which to challenge either the random selection of the nisi prius Judge under the Individual Assignment System or that Judge's decision not to recuse himself.
Concur — Milonas, J.P., Ellerin, Wallach and Rubin, JJ.