Schulbach v. Morris & McVeigh, LLP

126 A.D.3d 416, 2 N.Y.S.3d 341, 2015 NY Slip Op 01743, 2015 N.Y. App. Div. LEXIS 1732

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 2015
• Docket: 400734/12 -14385A 14385 14384
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Louis B. York, J.), entered May 16, 2013, dismissing the complaint, and bringing up for review orders, same court and Justice, entered April 9, 2013, which granted defendants’ motions to dismiss the complaint and denied plaintiffs cross motion for leave to file a third amended complaint, unanimously affirmed, without costs. Appeals from the foregoing orders, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court properly dismissed the claims against the Kelley Drye defendants based on plaintiffs execution of a general release that clearly and unambiguously waived all claims against those defendants (see Mergler v Crystal Props. Assoc., 179 AD2d 177 [1st Dept 1992]). Plaintiffs contention that this release was premised on mutual mistake is untenable. All of the facts giving rise to the instant malpractice claims were in existence at the time of the release and plaintiff does not assert that the Kelley Drye defendants in any way attempted to conceal them (id. at 182). The claims against the remaining defendants were also properly dismissed, since plaintiff executed a separate release that discharged the claims that were the predicate for those claims. The court properly exercised its discretion in denying plaintiffs motion for leave to file a third amended complaint asserting claims that would be barred by the release.

Concur — Tom, J.P., Friedman, Renwick, ManzanetDaniels and Feinman, JJ.