Summary
In Schwartz, the plaintiff's attorney added a hand-written supplement to the general release stating that that the release covered all civil and criminal claims.
Summary of this case from Potocnik v. Tracy Tenants Corp.Opinion
570004/04.
Decided July 7, 2004.
Plaintiff appeals from an order of the Civil Court, New York County, entered May 9, 2003 (Paul G. Feinman, J.) which dismissed the complaint on the grounds of release (CPLR 3211[a][5]).
Order entered May 9, 2003 (Paul G. Feinman, J.) affirmed, with $10 costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. MARTIN SCHOENFELD, Justices.
Civil Court properly granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(5) since plaintiff's claim for a real estate brokerage commission in connection with the sale of certain condominium apartments was barred by the general release dated March 22, 2000, executed by plaintiff. Under the clear and unambiguous terms of that printed release form, plaintiff, represented by counsel, relinquished his claim for a brokerage commission on a different property in exchange for $12,000 and agreed to release defendant "from all actions, causes of action, . . . contracts, . . . damages, . . . claims, and demands in law . . . or equity [which plaintiff] ever had, now have or hereafter can, shall or may have for, upon, or by reason of any matter . . . whatsoever . . . to the day of the date of this RELEASE." The release further provided in a handwritten sentence added by plaintiff's attorney that it "included but was not limited to all civil and criminal claims by releasor [plaintiff] against releasee (defendant)."
The release is enforceable in the absence of fraud, duress, illegality or mutual mistake (Mangini v. McClurg, 24 NY2d 556; Mergler v. Crystal Props. Assocs., 179 AD2d 177, factors not present here. At the time of plaintiff's execution of the release, plaintiff knew of the potential claim he now seeks compensation for, as listing broker for the condominium property (title to which closed a month later on or about April 19, 2000). The release did not contain a reservation of rights expressly excluding this claim. As correctly noted by the court below, "it is not a prerequisite to the enforceability of a release that the releasor be subjectively aware of the precise claim he . . . is releasing" (quoting Mergler v. Crystal Props. Assocs., 179 AD2d 177, 180, supra; see also, Booth v. 3669 Delaware, 242 AD2d 921, affd 92 NY2d 934; Koster v. Ketchum Communications, 204 AD2d 280, lv dismissed 85 NY2d 857). Furthermore, the scope of the release at bar involved prior and future brokerage commission disputes emanating from termination of plaintiff's employment with defendant and did not involve unrelated lawsuits (cf.,
Perritano v. Town of Mamaroneck, 126 AD2d 623).
This constitutes the decision and order of the court.