Opinion
27617/17E
03-28-2018
Michael HU, Plaintiff, v. REBIRTH REALTY CORP., et al., Defendants.
Counsel for Plaintiff: Mirman, Markovits & Landau, P.C. (Thomas P. Markovits, Esq.) Counsel for Defendants: Gallo, Vitucci, Klar, LLP. (Sarah Allison, Esq.)
Counsel for Plaintiff: Mirman, Markovits & Landau, P.C. (Thomas P. Markovits, Esq.)
Counsel for Defendants: Gallo, Vitucci, Klar, LLP. (Sarah Allison, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 6 read on the below motion noticed on December 18, 2017 and duly submitted on the Part IA15 Motion calendar of January 22, 2018: :
Papers Submitted Numbered
Defs.' Notice of Motion, Affirmation, Exhibits 1,2
Pl.'s Aff. In Opp., Exhibits 3,4
Defs.' Reply Aff. 5
Upon the foregoing papers, the defendants Rebirth Realty Corp. and Lagsam Property Services Corp. ("Defendants") move for an order (1) granting them summary judgment pursuant to CPLR 3212 and dismissing all claims asserted against them, (2) awarding them costs and fees pursuant to the Rules of the Chief Administrative Judge, Section 130.101, et. seq., due to the plaintiff's frivolous conduct, and (3) for such other and further relief as the Court deems just and proper. The plaintiff Michael Hu ("Plaintiff") opposes the motion .
Plaintiff's allegedly untimely opposition papers will be considered because Defendants were able to submit an affirmation in reply.
I. Background
Plaintiff commenced this action against Defendants in connection with injuries he allegedly sustained on July 31, 2016, when he was allegedly struck by ceiling debris inside of his apartment. Defendants now move for summary judgment on the grounds that Plaintiff's claims are barred due to a release that he and his wife allegedly signed on August 4, 2016 (the "Release"). Defendants allege that prior to the date of the Release, Plaintiff, his wife, and Defendants had "issues" including that Plaintiff owed rent arrears in the amount of $737.26. On August 4, 2016, an agreement was reached between Plaintiff, his wife, and Defendants wherein the family would be able to move from the premises to a different apartment within Defendants' real estate portfolio at the same rental rate. Additionally, the arrears owed by Plaintiff and his family would be forgiven. In exchange, Plaintiff and his wife agreed to release Defendants from any claims pertaining to damages, warranty of habitability, or liability through August 31, 2016.
The Release is entitled "Release in full of all claim" and it states, in pertinent part, that the Plaintiff released and forever discharged the defendants and their employees "from any claims to date pertaining to any damages and or warrant of habitability claims & Liability claims through August 31, 2016." It further states "[t]his release extends and applied to and also covers and included all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and knows [sic] to exist." Near the signature line it states "this is a release in full." Defendants thus assert that Plaintiff's complaint must be dismissed. Defendants also allege that since Plaintiff did not plead fraudulent inducement in his complaint, he cannot assert such a claim in opposition to the motion. Defendants further seek costs and sanctions against Plaintiff because he engaged in frivolous conduct by bringing this action after signing the Release, and thereafter refusing to discontinue the action.
In opposition to the motion, Plaintiff argues that the Release cannot be enforced because the document signed by Plaintiff was misrepresented to him, done so without the benefit of counsel, and it was a pre-printed, boilerplate document which was not indicative of "careful bargaining." Plaintiff submits an affidavit stating, in pertinent part, that after the ceiling collapse he and his wife were approached by building manager Linda Hernandez and a woman named "Yvette" who said she was the legal representative for the property, to have a conversation regarding the defect, as well as the move to a new apartment in the same complex. At this time, it was explained to Plaintiff that due to the defect in the ceiling, the property management was willing to move him to a new apartment and forgive any prior rent arrears. Plaintiff states "[i]t was conveyed to me that the document the property manager had me sign was simply to facilitate the forgiveness of arrears and to be able to officially move my wife and I into the new apartment. At no time was it made clear to either my wife or myself that by signing this document, we would be precluded from brin[g]ing any action against defendant, as a result of my injuries, sustained by the collapse of the ceiling in my former apartment. My accident was not discussed at all with my landlord. My injuries were not discussed and my possible claims were not discussed at any point in time. The only topics of discussion though this entire process was that of a different apartment and rent arrears." Plaintiff thus argues that he did not know what he signed when he signed the Release, and thus Defendants' motion must be denied. His counsel further notes that Plaintiff did not mention this document when the complaint was drafted. Plaintiff further asserts that the case law cited in support of Defendants' motion is distinguishable from the facts of this case.
II. Applicable Law and Analysis
"Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release" ( Centro Empresarial Cempresa S.A. v. America Movil, S.A.B.de C.V. 17 NY3d 269, 276 [2011] ). "A release will not be treated lightly because it is ‘a jural act of high significance without which the settlement of disputes would be rendered all but impossible’ " ( Allen v. Riese Organization, Inc. , 106 AD3d 514, 516 [1st Dept. 2013], quoting Mangini v. McClurg , 24 NY2d 556, 563 [1969] ). The enforceability of releases are generally analyzed under the same principles that govern contract law (see Johnson v. Lebanese American University , 84 AD3d 427, 428 [1st Dept. 2011] [quotation omitted] ). Accordingly, where a release is clear, unambiguous, and knowingly and voluntarily entered into, it is binding on all parties unless it was procured by fraud, duress, overreaching, illegality, or mutual mistake (Allen, supra at 516; see also Skulth v. United Merchants & Mfrs. , 163 AD2d 104, 106 [1st Dept. 1990] ). A release extends to claims both known and unknown if the agreement was "fairly and knowingly made" (Johnson v. Lebanese American University, supra. at 430, quoting Mangini v. McClurg , 24 NY2d at 566 ).
In this matter, the Release, containing clear and unambiguous language, sufficiently carries Defendants' initial burden of demonstrating entitlement to summary judgment, as it indicates that Plaintiff knowingly and voluntarily waived all claims of liability related to damages or injuries he sustained—both known and unknown—in exchange for the forgiveness of rent arrears totaling $737.26 (see Johnson v. Lebanese American Univ. , 84 AD3d at 430 ; Allen v. Riese Organization, Inc. , 106 AD3d 514, 515 ). As noted supra , the Release thus can only be avoided with a showing of the traditional bases for setting aside written agreements such as fraud, duress, overreaching, illegality, or mutual mistake ( Centro Empresarial Cempresa S.A. , 17 NY3d at 276 ).
Plaintiff's opposition and affidavit allege that the Release must be avoided due to material misrepresentations. Plaintiff claims that it was explained to him that the document he signed was simply to facilitate the forgiveness of rent arrears and to be able to officially move himself and his wife into a new apartment. Plaintiff further alleges that his accident and injuries were never discussed, and at no time was it made clear that by signing the document, he would be precluded from bringing an action against Defendants for personal injuries as a result of the ceiling collapse.
Plaintiff's contentions fail to raise an issue of fact. While Plaintiff's counsel alleges that Plaintiff "did not know what he was signing at the time," a party is obligated to read a document before he or she signs it, and one cannot later avoid the effects of a release upon the ground that he or she did not read or understand its contents (see Touloumis v. Chalem , 156 AD2d 230, 232–33 [1st Dept. 1989] ). Importantly, Plaintiff here does not state whether or not he actually read the Release before signing it, and he does not allege that he misunderstood its clear and unambiguous terms. Despite the fact that his injuries were never discussed, Plaintiff does not allege that he was unaware of the extent of those injuries, nor does he claim that he was afforded little time for investigation or deliberation before signing the Release. Accordingly, Plaintiff fails to raise an issue of fact as to whether or not the release was "fairly and knowingly made" or was procured through unfair circumstances or overreaching (see Flusserova v. Schnabel , 92 AD3d 464, 465 [1st Dept. 2012] ). Plaintiff may not now obviate the unambiguous terms of the Release by relying on his unilateral mistaken belief that it only concerned the forgiveness of rent arrears and his move into a new apartment (see Koster v. Ketchum Communications , 204 AD2d 280 [2nd Dept. 1994] ). Plaintiff does not claim that he reasonably relied on any alleged misrepresentations from Defendants before signing the Release, and he does not claim that Defendants prevented him from asking about its terms and conditions, which were clearly stated in plain language. In any event, where, as here, a party "has the means to discover the true nature of the transaction by the exercise of ordinary intelligence, and fails to make use of those means," he or she cannot establish that reliance on misrepresentations was reasonable (see Arfa v. Zamir , 76 AD3d 56, 60 [1st Dept. 2010] [internal quotations omitted] ). The mere fact that the Release appears to be on a pre-printed form does not raise triable issues of fact. Accordingly, Defendants' motion for summary judgment is granted.
That branch of Defendants' motion seeking costs and sanctions is denied. Conduct is "frivolous" within the meaning of the 22 NYCRR 130–1.1 if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. The statute further provides: In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
In this matter, the imposition of sanctions against Plaintiff is not warranted. Plaintiff's contentions in opposition to summary judgment concerning the enforceability of the Release are not "completely without merit in law" or otherwise unsupportable, and thus Plaintiff did not engage in any "frivolous" conduct.
III. Conclusion
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is granted, and Plaintiff's complaint is dismissed with prejudice, and it is further,
ORDERED, that Defendants' motion for costs and sanctions pursuant to 22 NYCRR 130–1.1 is denied.