Achache v. Och

May 21, 2015
650737/12 15178 15177
Versions:

Judgment, Supreme Court, New York County (Saliann Scarpulla, J.), entered July 14, 2014, dismissing the complaint, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered March 13, 2014, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and (7), unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court correctly found that, by waiting too long to file the instant action, plaintiffs waived their argument that they signed the subject release under duress (see e.g. Leader v Dinkler Mgt. Corp., 26 AD2d 683 [2d Dept 1966], affd 20 NY2d 393 [1967]). Plaintiffs might have been excused from suing for the first two years due to their fear of the look-back period (see Austin Instrument v Loral Corp., 29 NY2d 124, 133 [1971]; Sosnoff v Carter, 165 AD2d 486, 492 [1st Dept 1991]). However, they delayed an additional 10 months beyond those two years (see Leader, 26 AD2d at 683 [six-month delay waived claim of duress]).

Assuming arguendo that triable issues exist as to unconscionability and overreaching (see CPLR 3211 [c]), plaintiffs’ ratification of the release bars them from challenging it on those grounds (see Allen v Riese Org., Inc., 106 AD3d 514, 517 [1st Dept 2013]). Plaintiffs’ claim that they received no benefits at all from the separation agreement and release is belied by the record. Concur—Tom, J.P., Friedman, DeGrasse and Richter, JJ.