Partial v. Movahedian

Opinion

Partial v Movahedian

2026 NY Slip Op 05111

August 26, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Marc Partial, appellant,

v

Roni Movahedian, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2024-12188, (Index No. 501183/24)

Francesca E. Connolly, J.P.

Cheryl E. Chambers

William G. Ford

James P. McCormack, JJ.

Gutman Weiss, P.C., Brooklyn, NY (Sarah Betterman and Marc Illish of counsel), for appellant.

Jaspan Schlesinger Narendran LLP, Garden City, NY (Shannon E. Boettjer and Steven R. Schlesinger of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for fraud and misrepresentation, the plaintiff appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated September 11, 2024. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint is denied.

In 2024, the plaintiff commenced this action, inter alia, to recover damages for fraud and misrepresentation. The plaintiff alleged that the defendant misappropriated certain funds that the plaintiff transferred to the defendant for the purpose of a real estate investment. The defendant moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the action was barred by a release. The plaintiff opposed the motion. In an order dated September 11, 2024, the Supreme Court, inter alia, granted that branch of the defendant's motion. The plaintiff appeals.

"Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [internal quotation marks omitted]). A release affecting a claim may be the basis for a CPLR 3211(a)(1) motion to dismiss where the terms are clear and unambiguous and conclusively dispose of the matter (see Huli Ma v Hui Chen, 221 AD3d 869, 871; Burgos v New York Presbyt. Hosp., 155 AD3d 598, 599). Furthermore, CPLR 3211(a)(5) allows a party to move for dismissal on the ground that a cause of action may not be maintained because of a release (see Huli Ma v Hui Chen, 221 AD3d at 871; Miller v Brunner, 164 AD3d 1228, 1231). On a motion pursuant to CPLR 3211(a) to dismiss based on a release, "[a] defendant bears the initial burden of establishing that he or she has been released from any claims" (Burgos v New York Presbyt. Hosp., 155 AD3d at 600; see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d at 276).

Here, the Supreme Court erred in granting that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the action was barred by the release (see Burgos v New York Presbyt. Hosp., 155 AD3d at 600). The release submitted in support of the defendant's motion does not clearly and unequivocally express the intention of the parties to relieve the defendant of liability for the claims asserted herein (see Huli Ma v Hui Chen, 221 AD3d at 872; United Airconditioning Corp. v Axis Piping, Inc., 194 AD3d 981, 983-984).

Accordingly, the Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

In light of the foregoing, we need not reach the plaintiff's remaining contention.

CONNOLLY, J.P., CHAMBERS, FORD and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court