Opinion
2015-00660 Index No. 3613/12.
01-27-2016
Robbie Jaye ORTIZ, Jr., respondent, v. Gene BROOKS, also known as Eugeni Solomennyi, appellant.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael M. Burkart of counsel), for appellant. Banilov & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for respondent.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael M. Burkart of counsel), for appellant.
Banilov & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Silber, J.), dated October 27, 2014, which granted the plaintiff's motion to vacate a release and a stipulation of discontinuance and to restore the action to the active calendar, and denied his cross motion to enforce the terms of the parties' settlement agreement.
ORDERED that the order is reversed, on the law, with costs, the plaintiff's motion to vacate a release and a stipulation of discontinuance and to restore the action to the active calendar is denied, and the defendant's cross motion to enforce the terms of the parties' settlement agreement is granted.
The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when a vehicle he was operating collided with a vehicle operated by the defendant. The plaintiff executed a power of attorney designating his attorney, Nick Banilov, as his attorney-in-fact. The power of attorney, among other things, granted Banilov the authority to “execute general and trust release and stipulations of discontinuance throughout the life of [the plaintiff's] claim/case.” Subsequently, the parties reached a settlement, and Banilov, as attorney-in-fact for the plaintiff, executed a release. Banilov also signed a stipulation of discontinuance. The action was subsequently removed from the active calendar.
In January 2014, the plaintiff moved to vacate the release and the stipulation of discontinuance, and to restore the action to the active calendar. In support of the motion, Banilov contended, inter alia, that he mistakenly believed that his associate had obtained the plaintiff's approval before he executed the release, and that the plaintiff did not approve the terms of the settlement. The defendant opposed the plaintiff's motion, and cross-moved to enforce the terms of the parties' settlement agreement. In the order appealed from, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion, finding that Banilov did not have the authority to sign the release and discontinue the action. We reverse.
“A release is a contract, and its construction is governed by contract law” (Kaminsky v. Gamache, 298 A.D.2d 361, 361, 751 N.Y.S.2d 254; see Liotti v. Galasso, Langione & Botter, 128 A.D.3d 912, 912, 8 N.Y.S.3d 578; Rivera v. Wyckoff Hgts. Med. Ctr., 113 A.D.3d 667, 670, 978 N.Y.S.2d 337). “ ‘A release will not be treated lightly, and will be set aside by a court only for duress, illegality, fraud, or mutual mistake’ ” (Liotti v. Galasso, Langione & Botter, 128 A.D.3d at 912, 8 N.Y.S.3d 578, quoting Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208). Here, contrary to the Supreme Court's determination, the power of attorney executed by the plaintiff gave his attorney the authority to sign the release and discontinue the action (see Bradford Co. v. Dunn, 250 N.Y. 461, 467, 166 N.E. 167; Ferrarella v. Godt, 131 A.D.3d 563, 567, 15 N.Y.S.3d 180; Best v. Best, 302 A.D.2d 295, 754 N.Y.S.2d 542; Alizio v. Perpignano, 245 A.D.2d 477, 666 N.Y.S.2d 39; see also Citibank, N.A. v. Silverman, 84 A.D.3d 425, 425, 922 N.Y.S.2d 56; cf. Melstein v. Schmid Labs., 116 A.D.2d 632, 497 N.Y.S.2d 482). Furthermore, the plaintiff failed to establish that the release and stipulation of discontinuance were the product of mutual mistake, duress, illegality, or fraud (see Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Angel v. Bank of Tokyo–Mitsubishi, Ltd., 39 A.D.3d 368, 369, 835 N.Y.S.2d 57).
The parties' remaining contentions are either without merit or not properly before this Court.
Accordingly, the Supreme Court should have denied the plaintiff's motion to vacate the release and the stipulation of discontinuance and to restore the action to the active calendar, and should have granted the defendant's cross motion to enforce the terms of the parties' settlement agreement.