Cowles v. Brownell

Harvey, J. Appeal from an order of the Supreme Court (Walsh, Jr., J.), entered August 27, 1987 in Fulton County, which granted defendant’s motion to dismiss the complaint on the ground that plaintiff had previously released all claims against defendant. The underlying facts are set forth in this court’s prior decision involving the instant suit (127 AD2d 325), where we held that release-dismissal transactions are not violative of public policy per se and that each case must be examined on a case-by-case basis (supra; see, Newton v Rumery, 480 US —, 107 S Ct 1187). We remitted the case since Supreme Court had treated the motion to dismiss as a motion for summary judgment without giving proper notice to the parties. Upon remittal, an evidentiary hearing was held. After hearing the evidence and carefully scrutinizing the agreement, Supreme Court concluded that it was freely and voluntarily given. Hence, defendant’s motion was granted. This appeal followed. We affirm. A review of the record reveals that Supreme Court’s conclusion that the release-dismissal agreement was freely and voluntarily given is fully supported by the credible evidence. Plaintiff was represented by counsel at the time of the agreement. The People were prepared to proceed to trial and had three eyewitnesses. The Assistant District Attorney testified that the prospect for a conviction was in his opinion “very good”. The charge against plaintiff was a violation for which no lesser offense could be offered as a bargain. Plaintiff was afforded ample opportunity to discuss the proposed agreement with his attorney. In fact, there was testimony that the agreement was privately discussed by plaintiff and his attorney for up to 30 minutes. He was thus apparently fully apprised of the rights he was waiving and the benefit he was receiving in exchange therefor. Order affirmed, with costs. Casey, J. P., Yesawich, Jr., Harvey and Mercure, JJ., concur.