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

Decided on July 24, 2026

93 CA 24-01687

Present: Lindley, J.P., Curran, Ogden, Greenwood, And Hannah, JJ.

Appeal from an order of the Supreme Court, Monroe County (Elena F. Cariola, J.), entered October 4, 2024. The order granted the motion of defendants to dismiss the complaint and dismissed the complaint.

[*1]

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when the vehicle he was driving was rear-ended by a vehicle owned and operated by defendants. Supreme Court granted defendants' motion to dismiss the complaint on the ground that the action is barred by a release signed by plaintiff after the motor vehicle accident. Plaintiff contends on appeal that the court erred in granting the motion because there is a triable issue of fact whether the release was the result of mutual mistake or fraud. We affirm.

"Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release . . . If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties" (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011] [internal quotation marks omitted]). "A release 'should never be converted into a starting point for . . . litigation except under circumstances and under rules which would render any other result a grave injustice' " (id., quoting Mangini v McClurg, 24 NY2d 556, 563 [1969]). Thus, "[a] release may be invalidated . . . for any of 'the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake' " (id., quoting Mangini, 24 NY2d at 563). "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release 'shifts the burden of going forward . . . to the [plaintiff] to show that there has been fraud, duress or some other fact which will be sufficient to void the release' " (id., quoting Fleming v Ponziani, 24 NY2d 105, 111 [1969]).

"In assessing a motion to dismiss on the ground that an action may not be maintained because of a release (see CPLR 3211 [a] [5]), the allegations in the complaint are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in [the plaintiff's] favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light" (Armenta v Preston, 196 AD3d 1197, 1197 [4th Dept 2021] [internal quotation marks omitted]; see Fimbel v Vasquez, 163 AD3d 1120, 1121 [3d Dept 2018]; Sacchetti-Virga v Bonilla, 158 AD3d 783, 784 [2d Dept 2018]). "At the same time, however, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Simkin v Blank, 19 NY3d 46, 52 [2012] [internal quotation marks omitted]).

Initially, we disagree with plaintiff that the court erred in declining to treat the motion to dismiss as a motion for summary judgment. "[A] court may treat a motion to dismiss as a motion for summary judgment when the parties have otherwise received adequate notice by expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course" (Smithers v County of Oneida, 138 AD3d 1504, 1504 [4th Dept 2016] [internal quotation marks omitted]; see Village of Webster v Monroe County Water Auth., 269 AD2d 781, 782 [4th Dept 2000]). Here, defendants specifically moved to dismiss the complaint pursuant to CPLR 3211 predicated solely on the release signed by plaintiff and at no time did defendants either expressly seek summary judgment or take any steps indicative of a decision to chart a summary judgment course (cf. Smithers, 138 AD3d at 1504; Meredith v Siben & Siben, LLP, 130 AD3d 791, 791 [2d Dept 2015], lv denied 26 NY3d 910 [2015]).

On the merits, defendants met their initial burden of establishing that they were released from any claims arising out of the motor vehicle accident by submitting the release executed by plaintiff (see Armenta, 196 AD3d at 1197; Cain-Henry v Shot, 194 AD3d 1465, 1466 [4th Dept 2021]; Ford v Phillips, 121 AD3d 1232, 1233 [3d Dept 2014]). As defendants argue, "the language of [the] release is clear and unambiguous" and establishes that plaintiff's action against defendants to recover for personal injuries is barred (Booth v 3669 Delaware, 92 NY2d 934, 935 [1998]; see Carew v Baker, 175 AD3d 1379, 1381 [2d Dept 2019]; Kulkarni v Arredondo & Co., LLC, 151 AD3d 705, 706 [2d Dept 2017]). Indeed, the release contains broad language releasing and "forever discharg[ing]" defendants "from any and every claim, demand, right of cause of action, of whatever kind of nature,

. . . including . . . any injuries which may exist but which at this time are unknown and unanticipated and which may develop at some time in the future, [and] all unforeseen developments arising from known injuries." Consequently, defendants shifted the burden to plaintiff to show, inter alia, mutual mistake or fraud as a basis to deny the motion and not enforce the release.

In opposition, plaintiff contends that the release is unenforceable because it was the result of a mistaken belief concerning the nature and extent of his injuries. We reject that contention. It is well established that a general release may be set aside where there has been, inter alia, a mutual mistake (see Mangini, 24 NY2d at 563; Himmelsbach v George, 70 AD3d 1461, 1462 [4th Dept 2010], lv denied 15 NY3d 705 [2010]; Schroeder v Connelly, 46 AD3d 1439, 1440 [4th Dept 2007]), and that, "[i]n the instance of mutual mistake, the burden of persuasion is on the one who would set the release aside" (Mangini, 24 NY2d at 563). "With respect to mutual mistake, a 'high order of evidence is required' to overcome the 'heavy presumption that a deliberately prepared and executed written instrument [manifests] the true intention of the parties' " (Smith v City of New York, — NY3d —, —, 2025 NY Slip Op 07081, *2 [2025], quoting Chimart Assoc. v Paul, 66 NY2d 570, 573 [1986]; see George Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219 [1978]).

Here, on the day of the motor vehicle accident, and prior to executing the release, plaintiff went to the emergency room with complaints of pain in his neck and shoulder, and thereafter he scheduled a follow-up appointment with a chiropractor to address the pain. At the time he executed the release, plaintiff was still experiencing pain in his neck and shoulder. Indeed, he averred that, after signing the release, his neck and shoulder injuries worsened, progressing to the point where he ultimately had fusion surgery for his neck and was diagnosed with a muscle tear in his shoulder. On this record, it cannot be said that plaintiff's neck and shoulder injuries constituted unknown injuries warranting vacatur of the release on the basis of mutual mistake (see Verstreate v Cohen, 242 AD2d 862, 863 [4th Dept 1997]; Galatioto v Hanes, 224 AD2d 923, 924 [4th Dept 1996]). Rather, those injuries were consequences or sequelae of known injuries (see Galatioto, 224 AD2d at 924; DeQuatro v Zhen Yu Li, 211 AD2d 609, 610 [2d Dept 1995]; see also Viskovich v Walsh-Fuller-Slattery, 16 AD2d 67, 69 [1st Dept 1962], affd 13 NY2d 1100 [1963]). Likewise, plaintiff's assertion that he lacked knowledge that he would be required to undergo surgery at the time he signed the release goes " 'merely as to the consequence, future course, or sequelae of a known injury, [and consequently,] the release will stand' " (Himmelsbach, 70 AD3d at 1462, quoting Mangini, 24 NY2d at 564).

We further conclude that, in opposition to the motion, plaintiff failed to demonstrate that [*2]the release should not be enforced inasmuch as it was induced by fraud. "A plaintiff seeking to invalidate a release due to [fraud] must establish the basic elements of fraud, namely a representation of a material fact, the falsity of that representation, knowledge by the party who made the representation that it was false when made, justifiable reliance by the plaintiff, and resulting injury" (Powell v Adler, 128 AD3d 1039, 1040 [2d Dept 2015] [internal quotation marks omitted]). Inasmuch as plaintiff did not submit in opposition to the motion any evidence that, inter alia, the statements made by representatives of defendants' insurance carrier were false or that he justifiably relied upon such statements in deciding to sign the release, he failed to show that the release was voidable based on fraud (cf. Cain-Henry, 194 AD3d at 1466-1467; see generally Gray v Miller, 248 AD2d 1000, 1001 [4th Dept 1998]).

All concur except Ogden and Hannah, JJ., who dissent and vote to reverse in accordance with the following memorandum: We respectfully dissent. Initially, we agree with the majority that Supreme Court did not err in declining to treat the motion to dismiss as a motion for summary judgment inasmuch as defendants were neither expressly seeking summary judgment nor were they charting a summary judgment course (cf. Smithers v County of Oneida, 138 AD3d 1504, 1504 [4th Dept 2016]; Meredith v Siben & Siben, LLP, 130 AD3d 791, 791 [2d Dept 2015], lv denied 26 NY3d 910 [2015]).

Unlike the majority, however, we conclude that plaintiff alleged sufficient facts to establish that the release was a result of mutual mistake. We would therefore reverse the order, deny the motion, and reinstate the complaint.

"In assessing a motion to dismiss on the ground that an action may not be maintained because of a release (see CPLR 3211 [a] [5]), the allegations in the complaint are to be treated as true, all inferences that reasonably flow therefrom are to be resolved in [the plaintiff's] favor, and where, as here, the plaintiff has submitted an affidavit in opposition to the motion, it is to be construed in the same favorable light" (Armenta v Preston, 196 AD3d 1197, 1197 [4th Dept 2021] [internal quotation marks omitted]; see Fimbel v Vasquez, 163 AD3d 1120, 1121 [3d Dept 2018]; Sacchetti-Virga v Bonilla, 158 AD3d 783, 784 [2d Dept 2018]).

Here, defendants met their initial burden on their motion to dismiss the complaint on the ground of release by submitting the release executed by plaintiff (see Putnam v Kibler, 210 AD3d 1458, 1460 [4th Dept 2022]). The burden therefore shifted to plaintiff to show some other fact which will be sufficient to void the release (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]; Putnam, 210 AD3d at 1462). We conclude that plaintiff met his burden of alleging sufficient facts to establish that the release was the result of mutual mistake (see generally Mangini v McClurg, 24 NY2d 556, 565-566 [1969]; DiDomenico v McWhorter, 227 AD3d 1529, 1530 [4th Dept 2024]; Schroeder v Connelly, 46 AD3d 1439, 1440-1441 [4th Dept 2007]). Although plaintiff experienced pain in his left shoulder and neck before signing the release, the hospital records submitted by plaintiff show that the medical professionals believed plaintiff was experiencing minor or superficial injuries following the accident prior to plaintiff's execution of the release. Plaintiff submitted an affirmation in opposition to defendants' motion and attached medical records showing that, after signing the release, plaintiff learned that he had a muscle tear in his left shoulder and "injuries to C6/7 in [his] neck," necessitating fusion surgery on his neck (see DiDomenico, 227 AD3d at 1531). Because there is no indication in the record that, at the time the release was signed, either party had actual knowledge of the gravity of plaintiff's injuries, plaintiff met his burden of alleging sufficient facts to establish mutual mistake concerning the ultimate nature of his injuries (see generally Mangini, 24 NY2d at 565; Armenta, 196 AD3d at 1198; O'Neal v Life Science Labs., Inc., 23 AD3d 1024, 1025 [4th Dept 2005]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court