Fuentes v. Aluskewicz

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated November 22, 2004, which granted the defendants’ motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint based on a release. Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated. The plaintiff commenced this action to recover damages alleg [728] edly sustained in a fall down a flight of stairs at premises owned by the defendants. The defendants moved to dismiss the complaint on the ground that the plaintiff had been tendered a check in the sum of $1,000 for her injuries and had signed a general release. The Supreme Court granted the motion. We reverse. The defendants’ motion was made pursuant to CPLR 3211 (a) (5). However, the parties charted a summary judgment course (see Matter of Weiss v North Shore Towers Apts. Inc., 300 AD2d 596 [2002]). Thus, we apply the standard applicable to motions for summary judgment. Here, the defendants demonstrated a prima facie entitlement to judgment as a matter of law by proffering the signed general release. However, in opposition, the plaintiff raised a triable issue of fact as to the enforceability of the release (see generally Mangini v McClurg, 24 NY2d 556 [1969]). The plaintiff did not deny that she signed the release document, which was in English, and that she was tendered a check in the sum of $1,000. However, she averred that her comprehension of written English was poor, as it was not her first language and that the insurance company representative who obtained her signature did not identify the document as a release or explain its legal significance to her, but rather told her that it was “just an insurance company form to show that the representative had met with [her].” Indeed, the plaintiff asserted that when her daughter informed her of the true nature of the document, shortly after it was signed, she refused to cash the check and contacted an attorney. Consequently, the defendant’s motion should have been denied. Cozier, J.P., Ritter and Spolzino, JJ., concur.