Lydon v. Hasse

—In an action to recover damages for personal injuries, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Berler, J.), entered September 29 1997, as granted those branches of the plaintiff’s cross motion which were to dismiss the seventh, eighth, and ninth affirmative defenses, and to set aside a release, and denied her motion for summary judgment dismissing the complaint. Ordered that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly granted those branches of the plaintiffs cross motion which were to dismiss the affirmative defenses based on release and to set aside the release. Misrepresentations were made by the defendant in an affidavit unrelated to her motion and unrefuted misrepresentations were made by the defendant’s excess insurer prior to the time that the plaintiff entered into the release (see, Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 616; see also, Williamson Cent. School Dist. v E & L Piping, 261 AD2d 937; Steen v Bump, 233 AD2d 583; Desiderato v N & A Taxi, 190 AD2d 250, 253). The defendant’s remaining contentions are without merit. Mangano, P. J., Ritter, Joy, McGinity and Smith, JJ., concur.