Opinion
2013-04-16
Alec J. MEGIBOW, M.D., etc., Plaintiff–Appellant, v. CARON.ORG, etc., et al., Defendants–Respondents.
Anthony M. Bentley, New York, for appellant. Duane Morris LLP, New York (Fran M. Jacobs of counsel), for respondents.
Anthony M. Bentley, New York, for appellant. Duane Morris LLP, New York (Fran M. Jacobs of counsel), for respondents.
MAZZARELLI, J.P., ABDUS–SALAAM, MANZANET–DANIELS, CLARK, JJ.
Order, Supreme Court, New York County (Doris Ling–Cohan, J.), entered June 9, 2011, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court had jurisdiction to entertain defendants' motion, which was interposed after entry of the federal court order of remand but before the ministerial mailing of the order to the state court ( see In re Lowe, 102 F.3d 731, 735 [4th Cir.1996]; Health for Life Brand, Inc. v. Powley, 203 Ariz. 536, 57 P.3d 726, 730–731 [Ariz.App.2002] ). Plaintiff's claims were barred by the broad language of the March 2009 release ( see Centro Empresarial Cempresa S.A. v. América Móvil S.A.B. de C.V., 76 A.D.3d 310, 318, 901 N.Y.S.2d 618 [1st Dept. 2010], affd. 17 N.Y.3d 269, 929 N.Y.S.2d 3, 952 N.E.2d 995 [2011] ). Plaintiff failed to show that the release should be vacated on the ground that it had been induced by fraud because, among other reasons, plaintiff ratified the settlement by retaining the consideration he received for it ( see Dinhofer v. Medical Liab. Mut. Ins. Co., 92 A.D.3d 480, 481, 938 N.Y.S.2d 525 [1st Dept. 2012], lv. denied19 N.Y.3d 812, 2012 WL 4017461 [2012] ).
In view of the foregoing, it is unnecessary to address defendants' unopposed contentions regarding deficiencies in plaintiff's causes of action.
We have considered plaintiff's remaining contentions and find them unavailing.