Opinion
03-03-2015
Henrik F. SCHULBACH, now known as Henrick Barkley De Pearson, etc., Plaintiff–Appellant, v. MORRIS & McVEIGH, LLP, et al., Defendants–Respondents.
Michaels & Smolak, P.C., Auburn (Lee S. Michaels of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Morris & McVeigh, LLP, respondent. L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Marian C. Rice of counsel), for Judith Dillon Segreti, respondent. Kelley Drye & Warren LLP, New York (Steven P. Caley of counsel), for Kelley Drye & Warren LLP, Peter Wolfram, Michael S. Insel, Christina M. Mason, Lili Kishinevksy and Brenda Chizinski, respondents.
Michaels & Smolak, P.C., Auburn (Lee S. Michaels of counsel), for appellant.Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for Morris & McVeigh, LLP, respondent.
L'Abbate, Balkan, Colavita & Contini, L.L.P., Garden City (Marian C. Rice of counsel), for Judith Dillon Segreti, respondent.
Kelley Drye & Warren LLP, New York (Steven P. Caley of counsel), for Kelley Drye & Warren LLP, Peter Wolfram, Michael S. Insel, Christina M. Mason, Lili Kishinevksy and Brenda Chizinski, respondents.
Opinion Judgment, Supreme Court, New York County (Louis B. York, J.), entered May 16, 2013, dismissing the complaint, and bringing up for review orders, same court and Justice, entered April 9, 2013, which granted defendants' motions to dismiss the complaint and denied plaintiff's cross motion for leave to file a third amended complaint, unanimously affirmed, without costs. Appeals from the foregoing orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
The court properly dismissed the claims against the Kelley Drye defendants based on plaintiff's execution of a general release that clearly and unambiguously waived all claims against those defendants (see Mergler v. Crystal Props. Assoc., 179 A.D.2d 177, 583 N.Y.S.2d 229 [1st Dept.1992] ). Plaintiff's contention that this release was premised on mutual mistake is untenable. All of the facts giving rise to the instant malpractice claims were in existence at the time of the release and plaintiff does not assert that the Kelley Drye defendants in any way attempted to conceal them (id. at 182, 583 N.Y.S.2d 229 ). The claims against the remaining defendants were also properly dismissed, since plaintiff executed a separate release that discharged the claims that were the predicate for those claims. The court properly exercised its discretion in denying plaintiff's motion for leave to file a third amended complaint asserting claims that would be barred by the release.
TOM, J.P., FRIEDMAN, RENWICK, MANZANET–DANIELS, FEINMAN, JJ., concur.