The defendant moves to dismiss the complaint pursuant to CPLR § 3211(5) based upon a "Release and Settlement of Claim" given by plaintiff in exchange for $10,000 paid to plaintiff by the defendant.

On February 21, 2001, defendant was in an automobile accident in which her car struck a vehicle owned by plaintiff. The damages to plaintiff's vehicle amounted to $12,013.82. On April 25, 2003, the plaintiff prepared a "Release and Settlement of Claim" which, in exchange for $10,000 paid by the defendant, stated that plaintiff did hereby "release, acquit and forever discharge ... Sharla M. Alessi from any and all claims, demands, actions, causes of action, damages and costs on account of or growing out of any and all known property damage resulting from or to result from [the accident]. The release went on to state that the "intention hereby is to release said ... Sharla M. Alessi completely and finally from liabilities arising wholly or partially from such property damage to the extent of monies [*2]paid."

Unfortunately, according to plaintiff, the "Release and Settlement of Claim" neither released the defendant nor settled the claim because after signing the release and receiving the $10,000, the plaintiff sued the defendant for the additional $2013.82 in damage to its vehicle.

Defendant received no contractual consideration from plaintiff in exchange for the $10,000 she paid to plaintiff since she now faces litigation and trial despite the supposed settlement. Defendant was not represented by an attorney during the purported settlement of the claim against her and the negotiations with plaintiff were conducted through her insurance company.

The plaintiff, a public authority created by the State of New York, shamelessly argues that by clever draftsmanship it limited the release to the "extent of monies paid" by the defendant. Plaintiff apparently takes the position that the document it prepared was, in essence, a receipt rather than a release. According to plaintiff, it is free to repeatedly settle claims for cash and then re-litigate the same claim as long as the release is limited to the "extent of the monies paid." Although plaintiff cites no law, it manages to mention twice, out of a total of five short sentences in opposition, that the defendant was convicted of driving while intoxicated.

"A release is a contract that, unless its language is ambiguous, must be interpreted to give effect to the intent of parties as indicated by the language they utilized" (J & A Bayly Construction Company, Inc. v Village of Castleton-on-Hudson, 248 AD2d 766, 767).

In "forever" releasing defendant from "any and all claims" relating to the accident and then inserting vague limiting language at the very end of the document, the plaintiff rendered the release ambiguous. Further, "any ambiguity in a contract must be construed against the drafter" (Dube v Horowitz, 258 AD2d 724, 725).

Finally, "[w]hen the words of the release are of general effect the release is to be construed most strongly against the releasor ... and the burden rests upon the releasor to establish that general language of the release was not meant to be general. The fact that the release contains a clause setting forth a specific recital is not dispositive of the construction to be given the instrument ...." (Mt. Read Terminal, Inc. v LeChase Const. Corp., 58 AD2d 1034, 1035, appeal dismissed 43 NY2d 746).

The court finds that the ambiguity as to whether the release was general, or limited to the "extent of monies paid," must be resolved in favor of the defendant and the plaintiff's action is therefore barred by the release.

The motion is granted, with motion costs of $100 pursuant to [*3]CPLR §§ 8106 and 8202 paid to defendant, and the complaint is dismissed, also with costs and disbursements of the action paid to the defendant.

All papers, including this decision and order, are being returned to defendant's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

This constitutes both the decision and the order of the court.

IT IS SO ORDERED.

DATED: ALBANY, NEW YORK

MAY 25, 2005

THOMAS J. SPARGO, JSC

PAPERS CONSIDERED:

Notice of motion;

Affirmation of Shields;

Affirmation of Randall;

Reply affirmation of Shields.