Opinion
2007-1623 Q C.
Decided July 10, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered on August 28, 2007. The order granted defendant's motion for summary judgment dismissing the complaint and denied as moot plaintiff's cross motion, inter alia, for summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., RIOS and STEINHARDT, JJ.
In this action, plaintiff asserted claims for property damage and personal injuries sustained in an automobile accident that occurred on September 23, 2003. Prior to commencing this action, plaintiff, on January 15, 2004, had executed a general release of all claims, including property damage and personal injuries, in exchange for $1,377.40. Defendant moved for summary judgment dismissing the complaint on the ground that the causes of action for property damage and personal injury were barred by the release signed by plaintiff. The court below granted defendant's motion and denied as moot plaintiff's cross motion, inter alia, for summary judgment.
Plaintiff does not dispute that he signed the release at issue. Rather, he argues that he did not agree to release defendant from any personal injury claim. He contends that the release is not enforceable against him because he does not speak English and that defendant's insurer misled him as to the scope of the release.
The mere fact that plaintiff does not understand English is insufficient to set aside the release since he is presumed to know its contents and to have assented to its terms ( see Sofio v Hughes, 162 AD2d 518; Imero Fiorentino Assoc. v Green, 85 AD2d 419, 420). Cases have consistently held that a person with such a disability must make a reasonable effort to have an agreement made clear to him ( see Shklovskiy v Khan, 273 AD2d 371, 372; Sofio, 162 AD2d at 520). Plaintiff has not established that he took any steps to have the agreement read and made clear to him. While proof that the reader of an agreement "misrepresented the nature of the document" may relieve a non-English speaking party from its obligations ( Sofio, 162 AD2d at 520), plaintiff never demonstrated that the representative of defendant's insurer read the release to him and misrepresented the nature of its contents to him ( see Poplar Realty v Po , 3 Misc 3d 22 [App Term, 2d 11th Jud Dists 2003]). Moreover, plaintiff has not established grounds to set aside the release based upon mutual mistake ( see Calavano v New York City Health Hosps. Corp., 246 AD2d 317; compare Haynes v Garez, 304 AD2d 714; Curry v Episcopal Health Servs., Inc., 248 AD2d 662). Thus, in the absence of establishing fraud, duress or some other wrongful act by defendant's insurer, plaintiff is deemed to be conclusively bound by the release ( see Mangini v McClurg, 24 NY2d 556, 563; Maines Paper and Food Serv. v Adel, 256 AD2d 760, 761).
We have reviewed plaintiff's remaining contentions and find them to be without merit.
Accordingly, the order granting defendant's motion for summary judgment and denying plaintiff's cross motion as moot is affirmed.
Pesce, P.J., Rios and Steinhardt, JJ., concur.