Gray v. Miller

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendants’ motion for summary judgment dismissing the complaint on the ground of release. Defendants met their initial burden, and plaintiff failed to raise a triable issue of fact concerning her contention that defendants obtained the release through fraud 1001 or misrepresentation (see, Verstreate v Cohen, 242 AD2d 862). Plaintiff failed to offer proof in admissible form that she was misled by the statement of the “claims specialist” that, in his opinion, she did not have a serious injury. Therefore, “[p]laintiff has made no showing that [her] execution of the release was tainted by fraud, mutual mistake, duress or illegality” (K3 Equip. Corp. v Kintner, 233 AD2d 556, 558). Defendants’ motion for summary judgment, made 62 days after the effective date of the amendment to CPLR 3212 (a), is timely (see, Auger v State of New York, 236 AD2d 177; see also, Phoenix Garden Rest, v Chu, 245 AD2d 164). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.