The following papers numbered 1 to 7 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2, 3-4

Opposing Affidavits (Affirmations)5-6

Reply Affidavits (Affirmations)7

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant Jagdish Singh moves for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint on the ground that the action is barred by a release signed by plaintiff Lee Ann Mosticchio. Plaintiff Lee Ann Mosticchio cross-moves for an order pursuant to CPLR 3211(b) dismissing the affirmative defense premised on release.^[FN1] [*2]

The motion and the cross-motion are denied.

In this action, plaintiff alleges that on February 7, 2010 she suffered a trimalleolar fracture of her left ankle when she slipped and fell on an ice patch located on defendant's driveway. At his deposition, plaintiff's fiancé, Dennis Etnel, testified that he was a tenant in the house owned by defendant, and that he had previously observed that water would frequently pour out of one of the house's downspouts onto the area of the driveway at issue, forming a puddle that would freeze in cold weather, and that it was at this location that slipped and plaintiff fell. At his deposition, defendant denied that water from the downspout pooled on the driveway and denied that there was an ice condition on the driveway or sidewalk in the area where plaintiff is alleged to have fallen on the day of her alleged accident.

In moving for summary judgment, defendant alleges that the action is barred by an agreement dated February 8, 2010 (hereinafter the "Agreement"), purportedly signed by plaintiff, that provides, under the address of defendant's property and a heading stating, "To whom it may concern", that:

This is to let you know that I LEE ANN MOSTICCHIO hereby agreed not to take any legal action on the accident that happen in front of the above address. It is hereby agreed that the owner Jagdish Singh (Danny) will compensate 8-10 weeks of loss wages of 500.00 per week.

In support of his motion, defendant points to the portion of his own deposition testimony in which he stated that he and his wife went to visit plaintiff at her house a couple of days after the accident ^[FN2] and that plaintiff had told them that she "didn't want to go forward with anything, that she would not like to get involved with any legal ramification" (Defendant's deposition, at 26, lines 2-5). Defendant asserted that he wrote up the agreement after discussing it with plaintiff (Defendant's deposition, at 27, lines15-20). Defendant conceded that he did not pay plaintiff any money (Defendant's deposition, at 26, lines 17-18), and that, when asked, "[a]nd again, sir, I take it that whatever terms of that agreement never came to pass; is that correct?", plaintiff answered "no" (Defendant's deposition, at 27 line 25, 28, lines 1-4).

Defendant has also submitted the deposition testimony of Etnel. With respect to defendant's visit with plaintiff, Etnel, who was present at the time, testified that:

They came to the house. They brought flowers. They went in the room and [plaintiff] was laying down like all drugged up. Like she was out of it. They were talking about that they wanted to pay for her lost wages and stuff like that, which was ridiculous, but they felt sorry about it and they said, "Look. We're willing to pay for the lost wages," stuff like that. They gave her a piece of paper to sign, and they told me to sign here because they felt like, you know, I was a witness there. They told me to sign here, and I didn't get a chance to read it. [Plaintiff] didn't read it or anything whatsoever. They just gave it to her, and she signed it. And then they gave it to me. They said, "Are you a witness?" I was like, "Okay." They [*3]didn't give me no copies. I wish I had a copy. (Etnel's Deposition at 50, lines 22-25, 51, lines 1-17).

Etnel further testified that plaintiff, at the time of the visit, was on heavy painkillers that he had observed plaintiff take, that she was really out of it, and that she was falling in and out of sleep (Etnel's Deposition at 52-54). Although Etnel observed plaintiff answer defendant by saying "Okay, Okay", she did not appear to be responding to his conversation or understand what defendant was saying (Etnel's Deposition at 58). Etnel himself only understood that defendant was offering to pay for lost wages, and that defendant felt bad about the accident (Etnel' Deposition at 59, lines 7-14). According to Etnel, the defendant had already prepared the Agreement, and just took out and gave it to plaintiff to sign (Etnel's Deposition at 59, lines19-25).

At her own deposition, plaintiff was not asked about the Agreement. Plaintiff did, however, testify that Etnel took her to a hospital emergency room, where the staff X-rayed her left ankle and, upon reading the X-rays, told her that the ankle was broken (Plaintiff's Deposition, at 27, line 9-12). An orthopedist at the emergency room attempted to reset her ankle, casted it with a temporary cast, and instructed plaintiff to see an orthopedist in a week (Plaintiff's Deposition at 29-30). The hospital staff also gave plaintiff pain medication, which she was instructed to take as needed (Plaintiff's Deposition at 30).

In addition to these depositions, defendant has submitted a notice to admit asking plaintiff: (1) if she signed an agreement not to sue defendant in return for the payment of $500 a week for eight to ten weeks; and (2) whether the signature on the Agreement attached to the notice to admit was hers. In her response, plaintiff stated, with respect to the first question, that she was unable to admit or deny the statement because she has no recollection of the terms of the purported agreement, and with respect to the second question, that "the last name as contained on the signature line appears to be hers but as she separates the names Lee and Ann in her signature, she has no recollection of signing the purported document in the form as contained therein."

In opposition to the motion, and in support of her own motion, plaintiff relies on her own affidavit, in which she states that, on her discharge from the emergency room, she was given a prescription for Oxycodone with instructions to take one to two tablets every four to six hours as needed. Plaintiff further states that she did not sleep well that night, and the next day consumed the pain medication every four hours, and ate virtually nothing. When defendant visited her house that day, she recalled him saying that he would pay her for lost wages while she was out of work and that he mentioned signing a document, plaintiff "has no recollection of signing anything nor reading any supposed agreement," and denies discussing a lawsuit with him and denies that defendant said anything about the document being a release of any kind. Finally, plaintiff asserts that defendant never paid her for the lost wages.

These evidentiary assertions demonstrate the existence of factual issues requiring the denial of both motions regarding the Agreement. Initially, even though the Agreement did not use the word "release," the plain language providing that plaintiff agreed to not bring a legal action against defendant relating to the accident demonstrates that the document was intended, at least in part, to function as release (see Tams-Witmark Music Lib., Inc. v New Opera Co., Inc., 272 App Div 342345 [1947]["No particular form of words is necessary to constitute a valid release, so long as an intention to renounce a claim or discharge a debt is [*4]evidenced"], affd 298 NY 163 [1948]).^[FN3] "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release . . . A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely duress, illegality, fraud, or mutual mistake" (Centro Empresarial Cempresa S.A. v America Movil, S.A.B. de C.V., 17 NY3d 269, 276 [2011][internal quotation marks and citations omitted]; see also Mangini v McClurg, 24 NY2d 556, 563 [1969]). There is also

"a requirement that a release covering known and unknown injuries be fairly and knowingly made . . . This requirement may be applied in situations falling far short of actual fraud . . . such as when, because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of the injured party" (see Haynes v Garez, 304 AD2d 714, 715 [2003][internal quotation marks and citations omitted]; see also Mangini, 24 NY2d at 566-568; Johnson v Lebanese Am. Univ., 84 AD3d 427, 430 [2011]).

The testimony of defendant and Etnel does suggest that plaintiff, despite her protestations regarding how she normally signs her name, signed the Agreement and is probably sufficient to establish defendant's initial summary judgment burden (see Johnson, 84 AD3d at 430). Nevertheless, plaintiff's affidavit, in which she details the continued pain she was in, her use of painkillers, and lack of sleep, in conjunction with Etnel's similar testimony, is sufficient to demonstrate the existence of a factual issue as to whether plaintiff was competent to sign the release at that time (see Fleming v Ponzianni, 24 NY2d 105, 111-112 [1969]; cf. Zurenda v Zurenda, 85 AD3d 1283, 1284-1285 [2011]; Fieden v Feiden, 151 AD2d 889, 890 [1989]). The fact that the Agreement was signed only the day after plaintiff's accident lends credence to plaintiff's assertions (see Duch v Giaquinto, 15 AD2d 20, 22 [1961]).

Even if plaintiff was not so affected by her condition to render her "wholly and absolutely incompetent to comprehend and understand the nature of the transaction" (Fieden,

151 AD2d at 890 [internal quotation marks omitted]), her mental and physical condition is certainly a factor to be considered in determining whether the release was "fairly and knowingly made." If plaintiff's condition was as represented by her and Etnel, defendant should have been "on notice that plaintiff was in no physical or mental condition to properly appraise the present or future nature and extent of [her] injuries for settlement purposes" (Duch, 15 AD2d at 22; see also Haynes, 304 AD2d at 715). In addition, plaintiff and Etnel assert that defendant never mentioned that he was seeking a release of any lawsuit, but rather, only discussed paying plaintiff for her lost wages. There is thus a factual issue as to whether plaintiff's failure to read the terms of the agreement was reasonable (see Fleming, 24 NY2d at 113; Scully v Brooklyn Heights R. Co., 155 App Div 382, 384-386 [1913]; cf. Verstreate v Cohen, 242 AD2d 862, 863 [1997]; Sofio v Hughes, 162 AD2d 518, 519 [1990], lv denied 76 NY2d 712 [1990]). As stated in Fleming, even though defendant "possibly did not have the specific intent to act deceitfully in his relationship with plaintiff, his decision to have the [*5]release signed [one day] after the accident could be found to be so callous, done in such haste and without knowledge of the actual facts, that, in light of the fact that in procuring the plaintiff's signature he failed to disclose the character and significance of the instrument, his actions could be labeled deceitful" (Fleming, 24 NY2d at 113). Under these circumstances, plaintiff has demonstrated the existence of factual issues as to whether there was overreaching or unfair circumstances making it inequitable to allow the release to bar plaintiff's action (see Duch, 15 AD2d at 22; see also Johnson, 84 AD3d at 430-431; Haynes, 304 AD2d at 715; Gibli v Kadosh, 279 AD2d 35, 40-41 [2000]).^[FN4] These factual issues, however, likewise warrant denial of plaintiff's motion on the ground of plaintiff's competence and the fairness of defendant's obtaining the release (see Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [2005]; Triple Crown Auto v Utica Mut. Ins. Co., 233 AD2d 436, 438 [1996]).

Aside from the validity of the release, there are factual issues as to whether defendant breached the terms of the release/settlement in light of plaintiff's allegation, and defendant's apparent concession, that defendant did not pay plaintiff any compensation for lost wages (see Gaveglia v Barrack, 150 AD2d 341 [1989]; 19A NY Jur 2d, Compromise, Accord, and Release § 63). Under the circumstances here, where the agreement did not provide for a specific time period within which defendant was required to make the lost wage payment, and where the circumstances of the non-payment are not fully detailed on the record, plaintiff has not demonstrated the absence of factual issues warranting the dismissal of the release defense as a matter of law (see Santilli, 19 AD3d at 1032; Triple Crown Auto, 233 AD2d at 438). Moreover, while plaintiff mentions non-payment as one of the factors warranting avoiding the release, she did not specifically argue that non-payment constituted a breach of the agreement and grounds for treating the Agreement as rescinded. As such, it would be unfair to defendant to grant the motion solely on that ground.^[FN5]

This constitutes the decision and order of the court.

E N T E R,

J. S. C